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UNIVERSITY OF N.C. AT CHAPEL HILL
00033944769
FOR USE ONLY IN
THE NORTH CAROLINA COLLECTION
BIEN N lAL REPORT
OF THE
ATTORNEY GENERAL
OF THE
STATE OF NORTH CAROLINA
VOLUME 27
1942- 1944
Harry McMullan
attorney general
George B. Patton
W. J. Adams, Jr.
Hughes J, Rhodes
assistant attorneys general
LIST OF ATTORNEYS GENERAL SINCE THE ADOPTION
OF CONSTITUTION IN 1776
Term of Office
Avery, Waightsill 1777-1779
Iredell, James .-.. 1779-1782
Moore, Alfred 1782-1790
Haywood, J. John...... -. ...1791-1794
Baker. Blake 1794-1803
Seawell, Henry 1803-1808
Fitts, Oliver 1808-1810
Miller. William ,
.' ...1810-1810
Burton. Hutchins G....: 1810-1816
Drew, William :: 1816-1825
Taylor, James F :.. 1825-1828
Jones, Robert H ...1828-1828
Saunders, Romulus M ...1828-1834
Daniel, John R. J 1834-1840
McQueen, Hugh 1840-1842
Whitaker, Spier 1842-1846
Stanly, Edward 1846-1848
Moore, Bartholomew F 1848-1851
Eaton, William .1851-1852
Ransom. Matt W. .....1852-1855
Batchelor, Joseph B 1855-1856
Bailey, William H 1856-1856
Jenkins. William A 1856-1862
Rogers. Sion H .1862-1868
Coleman, William M 1868-1869
Olds, Lewis P 1869-1870
Shipp, William M 1870-1872
Hargrove, Tazewell L. , 1872-1876
Kenan. Thomas S 1876-1884
Davidson. Theodore F 1884-1892
Osborne, Frank I 1892-1896
Walser, Zeb V 1896-1900
Douglas, Robert D. ...1900-1901
Gilmer, Robert D 1901-1908
Bickett. T. W 1909-1916
Manning. James S 1917-1925
Brummitt, Dennis G ...1925-1935
Seawell, A. A. F ...1935-1938
McMuIIan, Harry 1938-
LETTER OF TRANSMITTAL
O
00
tr
cr
1 November. 1944
To His Excellency
J. Melville Broughton, Governor
Raleigh, North Carolina
Dear Sir:
In compliance with statutes relating thereto, I herewith transmit
the report of the Department of Justice for the biennium 1942-1944.
Respectfully yours,
Harry McMullan,
Attorney General.
Digitized by the Internet Archive
in 2011 with funding from
Ensuring Democracy through Digital Access (NC-LSTA)
http://www.archive.org/details/biennialrep1942attrny1944
EXHIBIT I
Civil Actions Disposed of or Pending in the Courts of North
Carolina and in Other Courts
Pending in Superior Courts of North Carolina
C. A. Blackwelder Will case (Stonewall Jackson Training
' School).
State ex rel. Beaufort County v. H. P. Webster.
Burroughs Adding Machine Company v. Gill, Commissioner of
Revenue.
Church V. American Equitable Assurance Company, et al.
County of Craven v. Each and All Property Ow^ners, etc.
R. L. Lewis and Huger King v. Charles M. Johnson, State
Treasurer.
Morrison v. Williams, et al.
Plummer, et al. v. H. E. King, Trustee.
State ex rel. Department of Conservation and Develpoment v.
Odie Johnson, et al.
In Re : Liquidation of United Bank and Trust Company.
General Motors Corporation v. Doughton (two cases).
State ex rel. Maxwell, Commissioner of Revenue v. American
Tobacco Company.
State ex rel. N. C. Corporation Commission v. Southern Railway
Company.
Disposed of in Superior Courts of North Carolina
Commissioners of Chowan County v. State Board of Assessment,
et al.
M. D. Harris, et al. v. Maxwell, Commissioner of Revenue.
State ex rel. Johnson, State Treasurer v. Wachovia Bank and
Trust Company.
B. S. Colburn v. First National Bank and Trust Company, et al.
City of Raleigh v. State Hospital at Raleigh.
Hunsucker, et al. v. Winborne, Commissioner, et al.
J. J. Johnson v. N. C. Department of Highway Patrol.
State ex rel. Utilities Commission v. Atlantic Greyhound Corp.,
et al. (2 cases).
State ex rel. Utilities Commission v. Atlantic Coast Line Rail-road
Company.
Arthur Pue, et al. v. Hood, Commissioner of Banks.
Southern Railway Company v. Rockingham County.
N. C. Mortgage Corporation v. Maxwell, Commissioner of
Revenue.
6 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol.
W. F, Logan v. Cline, Sheriff, Commissioner of Revenue, et al.
State V. Thomas M. Stanton.
Geo. Kostakes, etc. v. Gill, Commissioner of Revenue.
Valentine, Executor v. Gill, Commissioner of Revenue.
Asheville Livestock Company v. Gill, Commissioner of Revenue.
Safrit v. Hocutt, Director of Highway Safety Division.
Brown v. Gill, Commissioner of Revenue.
Cooper V. Ward, Commissioner of Motor Vehicles.
Southern Dairies, Inc. v. Maxwell, Commissioner of Revetiue.
Caswell Training School v. T. A. Loving Company.
James W. Davis, et al. v. Davis Hospital, Inc., et al.
Hyde County v. A. D. MacLean Estate, et al.
Eric Norden v. State Board of Education.
Disposed of in Municipal Recorder's Court
State v. Nick D. Kaperonis.
Pending Before Industrial Commission
L. O. Hill V. Forsyth County Board of Education.
Disposed of Before Industrial Commission
L. L. Guy V. N. C. Board of Alcoholic Control.
Wilhemina H. Smith v. Thomasville Board of Education, ec al.
Lois B. Callihan, et al. v. Board of Education, et al.
J. J. Johnson v. N. C. Department of Highway Patrol.
Jones, Administrator v. University of North Carolina.
Disposed of in North Carolina Supreme Court
Arthur Pue, et al. v. Hood, Commissioner of Banks, 222 N. C, 310.
Mattie Gilmore, et al. v. Hoke County Board of Education, et al..
222 N. C. 358.
Lola Beacham CaUihan v. Board of Education, et al., 222 N. C.
381.
Dan W. McLean v. Durham County Board of Elections, 222 N. C. 6.
Valentine, Executor v. Gill, Commissioner of Revenue, 223 N. C.
396.
Thompson v. State of North Carolina, et al., 223 N. C. 340.
Hunsucker, et al. v. Stanley Winborne, et al., 223 N. C. 650.
Warren, et al. v. State Board of Assessment, et al., 223 N. C. 604.
James Cooper v. T. Boddie Ward, Commissioner, 224 N. C. 99.
State ex rel. Utilities Commission v. Atlantic Greyhound Corp.
(2), 224 N. C. 293.
State ex rel. Utilities Commission v. Atlantic Coast Line R, R.
Co., 224 N. C. 283.
In Re: Yelton, 223 N. C. 845.
27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 7
Pending in United States Supreme Court
Williams and Hendrix v. State of North Carolina (new case).
Disposed of in United States Supreme Court
Eldon Steele v. State of North Carolina.
Williams and Hendrix v. State of North Carolina.
Charlie Herndon v. State of North Carolina.
Carl Lippard v. State of North Carolina.
Mayo V. United States of America.
Pending in United States District Court
United States of America v. 166.77 acres in Buncombe County.
United States of America v. 1,028.238 acres in Onslow County
( Kesler )
.
United States of America v. 10,866.93 acres in Onslow County
(Wynne).
United States of America v. Southern States Power Company,
et al.
United States of America ex rel. Tennessee Valley Authority v.
Geo. G. Whitcomb, et al.
Disposed of in United States District Court
United States of America v. Nathan Mayo, et al.
United States of America v. State of North Carolina ( Test Farm
at Swannanoa).
Pending in District Court of Appeals
Jeamiette A. Noel v. Edson B. Olds, Jr., et al. (Ackland Will
case )
.
Disposed of Before Federal Power Commission
In re : Declaration of Intention of Nantahala Power and Light
Company, etc. (Fontana Project).
EXHIBIT II
List of Criminal Cases Argued by the Attorney General and
His Assistants Before the North Carolina Supreme
Court: Fall Term, 1942; Spring Term, 1943; Fall
Term, 1943; Spring Term, 1944.
FALL TERM, 1942
State V. Allen, from Johnston; murder first degree; defendant
appealed; no error; 222 N. C. 145.
State V. Anderson, from Wayne; manslaughter; defendant ap-pealed;
new trial; 222 N. C. 148.
State V. Baker, from Cumberland; manslaughter; defendant ap-pealed;
new trial; 222 N. C. 428.
State V. Barefield, from Craven; larceny; defendant appealed;
appeal dismissed.
State V. Baynes and Dunnagan, from Davidson; violating munici-pay
ordinance; defendants appealed; Baynes, new trial; Dunna-gan,
reversed; 222 N. C. 425.
State V. Bonner, et al., from Columbus; murder first degree;
defendants appealed; new trial; 222 N. C. 344.
State V. Broom, from Mecklenburg (2 cases) 1—murder first
degree; 2—murder second degree; defendant appealed; new
trial; 222 N. C. 324.
State V. Champion, from Vance; murder second degree; defend-ant
appealed; new trial; 222 N. C. 160.
State V. Christopher, from Yancey; violating municipal ordi-nance;
defendant appealed; reversed (per cur.) 222 N. C. 98.
State V. Colson, from Currituck; violating liquor laws; defendant
appealed; no error; 222 N. C. 28.
State V. Cromer, from Stokes; felonious burning; defendant ap-pealed;
reversed; 222 N. C. 35.
State V. David, from Lenoir; murder second degree; defendant
appealed; new trial; 222 N. C. 242.
State V. Davis, from Wilkes; assault with deadly weapon; de-fendant
appealed; new trial; 222 N. C. 178.
State V. Debnam, from Franklin; manslaughter; defendant ap-pealed;
new trial; 222 N. C. 266.
State V. DeGraffenreid, from Lee; manslaughter; defendant ap-pealed;
new trial; 222 N. C. 113.
State V. Dove, from Harnett; murder second degree; defendant
appealed; appeal dismissed (per cur); 222 N. C. 162.
State V. Duncan, from Buncombe; bastardy; defendant appealed;
affirmed; 222 N. C. 11.
State V. Forte, from Forsyth; abortion; defendant appealed;
reversed; 222 N. C. 537.
[Vol. 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 9
State V. Goss, from Wilkes; manslaughter; defendant appealed;
no error; 222 N. C. 751.
State V. Hairston, from Forsyth; rape; defendant appealed; no
error; 222 N. C. 455.
State V. Harris, from Bertie; rape; defendant appealed; no error:
222 N. C. 157.
State V. High, et al., from Wilson; operating junk yard in resi-dential
section; defendant appealed; reversed; 222 N. C. 434
State V. Howard, from Wake; embezzlement; defendant ap-pealed;
no error; 222 N. C. 291.
State V. Jones, from Beaufort; assault with intent to commit rape;
defendant appealed; affirmed; 222 N. C. 37.
State V. H. King, from Buncombe; violating liquor laws; defend-ant
appealed; appeal dismissed; 222 N. C. 137.
State V. G. King, from Cabarrus; larceny; defendant appealed;
no error; 222 N. C. 239.
State V. McLeod, from Harnett; violating liquor laws; defendant
appealed; error and remanded; 222 N. C. 142.
State v. Meares, from Robeson; murder first degree; defendant
appealed; no error; 222 N. C. 436.
State v. Moore, from Columbus; nonsupport; defendant ap-pealed;
no error; 222 N. C. 356.
State v. Neal, from Forsyth; murder first degree; defendant ap-pealed;
no error; 222 N. C. 546.
State v. Norton, from Scotland; assault with deadly weapon; de-fendant
appealed; new trial; 222 N. C. 418.
State V. Patterson, from Craven; violating liquor laws; defend-ant
appealed; appeal dismissed; 222 N. C. 179.
State V. Reddick, from Forsyth; receiving stolen goods; defend-ant
appealed; no error; 222 N. C. 520.
State V. Reynolds, from Stokes; breaking and entering; defend-ant
appealed; no error; 222 N. C. 40.
State V. Shine, from Duplin; violating liquor laws; defendant ap-pealed;
no error; 222 N. C. 237.
State V. Tennant, from Wake; embezzlement; defendant ap-pealed;
no error; 222 N. C. 277.
State V. Todd, from Columbus; murder first degree; defendant
appealed; reversed; 222 N. C. 346.
State V. Tola, from Cumberland; violating liquor laws; defendant
appealed; no error; 222 N. C. 406.
State V. Vincent, from Durham; rape; defendant appealed; no
error; 222 N. C. 543.
State V. Ward, from Wake; embezzlement; defendant appealed;
no error; 222 N. C. 316.
State V. Wellman, from Iredell; rape; defendant appealed; no
error; 222 N. C. 215.
Docketed and Dismissed on Motion
State V. Phillips, from Durham.
State V. Whetstine, from Rutherford.
10 ' BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol.
SPRING TERM, 1943
State V. Auston, from Guilford; murder second degree; defend-ant
appealed; no error; 223 N. C. 203.
State V. Baxley, from Robeson; statutory rape; defendant ap-pealed;
no error; 223 N. C. 210.
State V. Boyd, et al., from Franklin; possessing burglar tools; de-fendants
appealed; reversed; 223 N. C. 79.
State V. Burrage, from Stanly; murder first degree; defendant
appealed; new trial; 223 N. C. 129.
State V. Clarke, et als., from Catawba; appeal from judgment
absolute against bond; defendants appealed; appeal dismissed;
222 N. C. 744.
State V. E. Davis, from Franklin; assault with deadly weapon
with intent to kill; defendant appealed; new trial; 223 N. C. 57.
State V. H. Davis, from Wake; nuisance, gambling, etc.; defend-ant
appealed; affirmed; 223 N. C. 54.
State V. Farrell, from Durham; rape; defendant appealed: new
trial; 223 N. C. 321.
State V. Friddle, et al., from Guilford; breaking, entering and
larceny; defendants appealed; new trial; 223 N. C. 258.
State V. Grass, from Cabarrus; murder first and second degrees;
defendant appealed; no error; 223 N. C. 31.
State V. Gray, from Mecklenburg; violating liquor laws; defend-ant
appealed; no error; 223 N. C. 120.
State V. Herndon, from Robeson; operating building for purpose
of prostitution, etc.; defendant appealed; no error; 223 N. C.
208.
State V. Hunt, et al., from Robeson; rape; defendants appealed;
no error; 223 N. C. 173.
State V. Lippard, et al., from Mecklenburg; conspiracy to violate
liquor laws; defendants appealed; no error; 223 N. C. 167.
State V. McKinnon, et al., from Moore; murder second degree;
defendants appealed; no error; 223 N. C. 160.
State V. Miller, et al., from Robeson; manslaughter; defendants
appealed; new trial; 223 N. C. 184.
State V-. Nesbit, from Mecklenburg; Assault on female; no juris-diction;
appeal dismissed.
State V. Pelley, et al., from Buncombe; appeal from judgment
absolute against bond; Dorsett and Fisher appealed; affirmed;
222 N. C. 684.
State V. Rice, from Madison; murder second degree; defendant
appealed; new trial; 222 N. C. 634.
State V. Smith, from Columbus; seduction; defendant appealed;
no error; 223 N. C. 199.
State V. Trippe, from Pasquotank; rape; defendant appealed; no
error; 222 N. C. 600.
State V. Utley, from Montgomery; murder first degree; defendant
appealed; no error; 223 N. C. 39.
27
J
BIENNIAL REPORT OF THE ATTORNEY GENERAL 11
State V. Watson, from Bertie; murder first degree; defendant
appealed; no error; 222 N. C. 672.
State V. Wilborn, (See "State v. Boyd, et al.").
Docketed and Dismissed on Motion
State V. Bryant, from McDowell.
State V, Isley, from Rockingham.
State V. Lee, from Camden.
State V. Moody, from Northampton.
State V. Wilfong, from Catawba.
FALL TERM, 1943
State V. Bentley, from Caldwell; assault with deadly weapon;
defendant appealed; no error; 223 N. C. 563.
State V. Biggs, et als., from Guilford; murder first degree; defend-ants
appealed; new trial; 224 N. C. 23.
State V. Cameron, et al., from Lee; larceny; defendants appealed;
reversed; 223 N. C. 449.
State V. Cameron, from Lee; larceny; defendant appealed; no
error; 223 N. C. 464.
State V. Campbell, from Durham; doing business without license;
defendant appealed; reversed; 223 N. C. 828.
State V. Case, from Guilford; manslaughter; defendant appealed;
no error (per cur.) ; 223 N. C.
State V. Cummings, from Robeson; assault on female; defendant
appealed; no error (per cur.); 223 N. C.
State V. Davis, from Pasquotank; murder second degree; defend-ant
appealed; no error; 223 N. C. 381.
State V. DeGraffenreid, from Lee; murder second degree; defend-ant
appealed; new trial; 223 N. C. 461.
State V. Dillard, from Wayne; abortion; defendant appealed;
no error; 223 N. C. 446.
State V. EUerbee, from Richmond; manslaughter; defendant ap-pealed;
new trial; 223 N. C. 770.
State V, Epps, et al., from Robeson; larceny; defendants appealed;
no error; 223 N. C. 740.
State V. Farrell, from Durham; rape; defendant appealed; no
error: 223 N. C. 804.
State V. Grainger, from Columbus; murder first degree; defend-ant
appealed; no error; 223 N. C. 716.
State V. Grass, from Cabarrus; murder first degree; defendant
appealed; judgment affirmed; appeal dismissed (per cur.);
223 N. C.
State V. Gregory, from Johnston; assault with deadly weapon
with intent to kill; defendant appealed; error and remanded;
223 N. C. 415.
State V. Harris, from Hoke; murder first degree; defendant ap-pealed;
no error; 223 N. C. 697.
12 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol.
State V. Herndon, from Robeson; operating house of prostitution;
defendant appealed; appeal dismissed.
State V. C. Hill, et al., from Guilford; perjury; defendant Hill
appealed; new trial; 223 N. C. 711.
State V. N. Hill, from Guilford; violating liquor laws; defendant
appealed; no error; 223 N. C. 753.
State V. Holbrook, from Wilkes; larceny; defendant appealed;
new trial; 223 N. C. 622.
State V. Jackson, from Onslow; sale of beer and whiskey (two
cases); defendant appealed; affirmed (per cur.,); 223 N. C.
State V. Lowery, from Rowan; involuntary manslaughter; de-fendant
appealed; reversed; 223 N. C. 598.
State V. McKeon, from Edgecombe; breaking, entering and
larceny; defendant appealed; affirmed; 223 N. C. 404.
State V. O'Connor, et al., from Harnett; forfeiture of bond; de-fendant
surety appealed; affirmed; 223 N. C. 469.
State V. Oxendine, et al., from Scotland; receiving stolen goods,
etc.; defendants appealed; reversed; 223 N. C. 659.
State v. Prince, from Swain; murder second degree; defendant
appealed; new trial; 223 N. C. 392.
State V. Redfern, from Wake; murder first degree; defendant ap-pealed;
no error; 223 N. C. 561.
State V. Rising, from New Hanover; breaking, entering and
larceny; defendant appealed; no error; 223 N. C. 747.
State V. Smith, from Warren; murder first degree; deffendant
appealed; no error; 223 N. C. 457.
State V. Suddreth, from Caldwell; violating liquor laws; defend-ant
appealed; reversed; 223 N. C. 610.
State V. Tyson, from Pitt; assault on female; defendant appealed;
error and remanded; 223 N. C. 492.
State V. Vicks, from Chowan; rape; defendant appealed; no error;
223 N. C. 384.
Docketed and Dismissed on Motion
State V. Poole, from Pasquotank.
SPRING TERM, 1944
State V. Ballard, from Harnett; assault with intent to commit
rape; defendant appealed; no error (per cur.); 224 N. C.
State V. Dill, from Madison; nonsupport; defendant appealed;
reversed; 224 N. C. 57.
State V. Dry, from Cabarrus; assault with deadly weapon;
defendant appealed; appeal dismissed; 224 N. C. 224.
State V. Gay, from Harnett; assault with intent to commit rape;
defendant appealed; new trial; 224 N. C. 141.
State V. Gordon, from Wake; violating liquor laws; defendant
and petitioner appealed; defendant, no error; petitioner, ap-peal
dismissed; 224 N. C. 304.
27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 13
State V. Graham, C, from Bladen; violating liquor laws; defend-ant
appealed; error and remanded; 224 N. C. 347.
State V. Graham, M., from Bladen; violating liquor laws; defend-ant
appealed; no error; 224 N. C. 351.
State V. Hail, from Cumberland; violating liquor laws; state ap-pealed;
reversed; 224 N. C. 314.
State V. Ham, et al., from Johnston; robbery; defendant appealed;
Ham and T. Hardy, no error; R. Hardy, reversed; 224 N. C. 128.
State V. King, from Guilford; operating lottery; defendant ap-pealed;
no error; 224 N. C. 329.
State V. Miller, et al., from Catawba; fornication and adultery;
defendant Miller appealed; no error; 224 N. C. 228.
State V. Nunley, from Rockingham; attempted larceny; defend-ant
appealed; reversed; 224 N. C. 96.
State V. Oldham, from Forsyth; vagrancy; defendant appealed;
reversed; 224 N. C. 415.
State V. O'Connor, et al., from Harnett; forfeiture of bond; surety
defendant appealed; affirmed (per cur.); 224 N. C.
State V. Register, et al., from Harnett; assault with deadly weapon
with intent to kill; defendants appealed; no error (per cur.);
224 N. C.
State V. Rivers, from Alamance; manslaughter; defendant ap-pealed;
no error; 224 N. C. 419.
State V. Robinson, et al., from Forsyth; operating lottery; de-fendants
appealed; error and remanded; 224 N. C. 412.
State V. Sawyer, et al., from Camden; highway robbery; defend-ants
appealed; no error; 224 N. C. 61.
State V. Summerlin, from Caldwell; nonsupport; defendant ap-pealed;
reversed; 224 N. C. 178.
State V. Todd, from Cumberland; murder second degree; defend-ant
appealed; no error; 224 N. C. 358.
State V. Truelove, et al., from Harnett, abduction; defendants ap-pealed;
no error; 224 N. C. 147.
State v. Walsh, et al., from Caldwell; assault with intent to com-mit
rape; defendants appealed; new trial; 224 N. C. 218.
State V. Williams, et al., from Caldwell; bigamous cohabitation;
defendants appealed; no error; 224 N. C. 183.
Docketed and Dismissed on Motion
State V. Couch, from Yadkin.
SUMMARY
Affirmed on defendant's appeal 66
Reversed on State's appeal ..._ . 1
New trial or reversed on defendant's appeal 41
Error and remanded 5
Appeal dismissed _ _ 17
130
14 biennial report of the attorney general [vol. 27]
Fees Transmitted by Attorney General to State Treasurer Since
February Term, 1942, Through February Term, 1944
State V. Smith $ 10.00
State V. Batson __ : 10.00
State V, Reynolds 10.00
State V. King 10.00
State V. Dove 10.00
State V. Howard 10.00
State V. King 10.00
State V. Ward 10.00
State V. Shine 10.00
State V. Moore 10.00
State V. Tennant , 10.00
State V. Reddick 10.00
State V. Duncan 10.00
State V. Tola ,....: 10.00
State V. Trippe : 10.00
State V. Pelley :. . 10.00
State V. Clarke 10.00
State V. Turner 10.00
State V. Gray 10.00
State V. Lippard 10.00
State V. Herndon 10.00
State V. Smith 10.00
State V. Auston ...... 10.00
State V. Davis 10.00
State V. Davis : 10.00
State V. Southern Railway 14.30
State V. McKeon 10.00
State V. Dillard 10.00
State V. Cameron 10.00
State v. Jackson .: 10.00
State V. Jackson 10.00
State V. Bentley 10.00
State V. Hill 10.00
State v. Grainger J. 10.00
State V. Case ..: 10.00
State V. Epps : 10.00
State V. Harris 10.00
State V. Cummings -.-. 10.00
State V. Ham, et al 10.00
State V. Register, et al 10.00
State V. Williams, et al 10.00
State V. Truelove 10.00
State V. Gordon 10.00
State V. Ballard 10.00
State V. King 10.00
State v. Todd 10.00
State v. Miller 10.00
State V. Graham 10.00
State V. Hall '. 10.00
$494.30
SUMMARY OF ACTIVITIES
Staff Personnel
On July 13, 1942, Mr. T. W. Bruton, Assistant Attorney General,
was granted a leave of absence on account of having accepted a com-mission
as Captain in the United States Army. Since that time Mr.
Bruton has been promoted to the rank of Major and is now on active
duty.
Mr. H. J. Rhodes, Attorney at Law of Burlington, was appointed
Assistant Attorney General upon granting the leave of absence to Mr.
Bruton and Mr. Rhodes has been serving in that capacity until this
time.
Other important changes in personnel have occurred during the
biennium. Mr. Harry W. McGalliard, who was Director of the Division
of Legislative Drafting and Codification of Statutes, was called into
service in August 1943, and was granted a leave of absence for the
duration of the war. Mr. J. Bourke Bilisoly, who had been serving
as a member of the staff of this Division, was named as Acting Director
and has served in that capacity until the present time. Mr. Moses B.
Gillam, Jr., was called into service in December 1943, and was granted
a leave of absence. Mr. Joel Denton was appointed as a member of
the staff to succeed Mr. Gillam. He served with us until he resigned,
effective July 1, 1944, to accept a position in private employment. Mr.
J. E. Tucker served as a member of the staff throughout the biennium.
For the last half of the second year of the biennium, the personnel
of the staff of the Division of Legislative Drafting and Codification
of Statutes was, as contemplated, reduced to a director and stenographer.
Mr. George B. Patton, Assistant Attorney General, has served
throughout the biennium and Mr. W. J. Adams, Jr., Assistant Attorney
General, has likewise served during this period. Mr. Adams is assigned
to the Revenue Department under the terms of the statute and has had
as his assistant, Mrs. Cornelia McKimmon Trott.
The secretarial personnel during the biennium has been as follows:
Mrs. Margaret York Wilson, Mrs. Lorraine H. Allers, Miss Lillian
Turner, Miss EfRe McLean English and Miss Marjorie Mann.
Division of Legislative Drafting and Codification of Statutes
As was authorized by the 1941 General Assembly, a Legislative
Edition of the General Statutes of North Carolina was prepared and
submitted to the General Assembly of 1943. The preface of the Legisla-tive
Edition gave in full the legislative history of the General Statutes
and the work done in its preparation by this office and the commissions,
both legislative and voluntary, which had been set up to cooperate
with the Attorney General's office in the preparation and submission
of this extensive work. The Legislative Commission appointed by the
General Assembly of 1941 filed its recommendations, which were made
a part of the Legislative Edition, and recommended the enactment
of the General Statutes in the form presented by this office. Chapter
16 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol.
33, entitled "An Act Revising and Consolidating the Public Statutes
of the State of North Carolina," was unanimously enacted by the
General Assembly, providing that this revision of our statutory law
should be in force from and after the 31st day of December 1943,
and providing that all public and general statutes not contained in the
General Statutes of 1943 be repealed. Certain exceptions and limi-tations
are set out in Chapter 164, entitled "Concerning the General
Statutes of 1943." This enactment made the General Statutes the
official statement of the statutory law of the State.
The publication of the General Statutes by The Michie Company
was delayed on account of war conditions affecting the printing in-dustry
but all four volumes have now been distributed and are in the
hands of the purchasers.
Chapter 192 of the Session Laws of 1943 authorized the purchase by
the Governor and Council of State of not to exceed three hundred and
fifty sets of the General Statutes, to be distributed to the judges of the
Superior Court, the solicitors, the clerks of the Superior Court, and
justices of the Supreme Court, the Supreme Court Library, and to
various State officials, departments and agencies for any proper State
use. Acting on this authority, the Governor and Council of State
authorized the purchase of 293 sets at $22.50 per set. This dis-tribution
was in addition to one hundred and seventy sets of the four-volume
edition which were donated by the publisher, as a part of its
contract for the publication, and distributed to members of the General
Assembly of 1943.
Along with the submission of the Legislative Edition of the General
Statutes to the General Assembly, there were submitted a great many
recommendations of the Division correcting obvious errors in existing
statutes, repealing obsolete statutes and clarifying obscure statutes.
Joint committees in the House and Senate set up by the General As-sembly
of 1943 considered many of these recommendations and
favorably reported the bill carrying many of the recommendations into
effect. This bill was enacted as Chapter 543 of the Session Laws of
1943.
Due to the fact that there were many recommendations which tht
legislative coinmittees were unable to consider on account of lack of
time, the General Assembly, by Joint Resolution No. 23, set up a
commission composed of twelve members, five from the Senate and
seven from the House, to continue the study of the recommendations
for statutory revision and correction and directed that the report
should be filed at the next General Assembly. At the time this is
written, the commission is considering various recommendations made
by the division and other changes in statutory law which will be pre-sented
to the General Assembly in the report of the commission.
Continuous Statutory Research and Revision
Chapter 382 of the Session Laws of 1943 amended the Act creating
the Department of Justice, by establishing a system of continuous
statutory research and revision in the Division of Legislative Drafting
.and Codification of Statutes. This Act provides
:
27J BIENNIAL REPORT OF THE ATTORNEY GENERAL 17
"In order that the laws of North Carolina, as set out in the General
Statutes of North Carolina, may be made and kept as simple, as clear,
as concise and as complete as possible, and in order that the amount
of construction and interpretation of the statutes required of the courts
may be reduced to a minimum, it shall also be the duty of the division
of legislative drafting and codification of statutes to establish and main-tain
a system of continuous statute research and correction. To that
end the division shall:
"1. Make a systematic study of the general statutes of the State,
as set out in the General Statutes and as hereafter enacted by the
General Assembly, for the purpose of ascertaining what ambiguities,
conflicts, duplications and other imperfections of form and expression
exist therein and how these defects may be corrected.
"2. Consider such suggestions as may be submitted to the division
with respect to the existence of such defects and the proper correction
thereof.
"3. Prepare for submission to the General Assembly from time to
time bills to correct such defects in the statutes as its research
discloses."
The author of this bill is Mr. Robert Moseley, member of the
Greensboro, North Carolina Bar, who is a member of the House. In
an excellent article appearing in the June 1944 issue of the North
Carolina Law Review, Mr. Moseley gives a very complete statement
of the object and purposes of this legislation and the things it is hoped
to accomplish thereby. Anyone interested in this subject will gain a
great deal of information on the reading of this article.
Due to the fact that the Division of Legislative Drafting and Codifica-tion
of Statutes was unable to complete its work on the North Carolina
Statutes until the latter part of the summer of 1944, very little work
has been done as contemplated by this statute. The division has been
cooperating with the commission appointed by the General Assembly
of 1943, with a view of carrying forward the work necessary to correct
the errors and omissions in the existing statutes as contemplated
by the resolution appointing this commission. The division consists of a
director and secretary. Its staff was reduced on January 1, 1944,
which has necessarily imposed limitations on its accomplishments
under this important statute. The work on the General Statutes having
been completed and when the work of the commission studying the
corrections and clarification of the statutes above referred to has been
completed, it is planned to concentrate upon the work required by
Chapter 382. It is obvious that to carry forward the important work
contemplated by this statute, the personnel of this division should be
increased. Recommendations with respect to this of a more specific
character will be made during the 1945 session.
Supplements to General Statutes
The contract made with the publishers of the General Statutes
contemplates that each six months there shall be issued a pocket
supplement of each volume containing all statutory enactments there-after
made and annotations up to date. The first issue of this pocket
18 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol.
supplement has been promised by the publishers for some time during
the month of September 1944. Following a meeting of the General
Assembly and as soon thereafter as possible, another supplement will
be issued codifying and annotating the laws enacted at that session.
With these pocket supplements, the General Statutes will be kept up
to date as to statutory changes and court decisions set out in the
annotations.
Legislative Drafting
It \vas a source of great satisfaction to the entire staff of the At-torney
General's office, including the members of the Division of
Legislative Drafting and Codification of Statutes, to be called upon
to such a great extent by the members of the General Assembly of
1943 for assistance in the preparation of bills. With these calls, and
with calls from State and local officials, the entire staff of the At-torney
General's office was needed in the preparation of more than
one thousand acts w^hich were drafted in this office. This is a service
which the office is very glad to render, with the hope that it may
result in benefit to members of the General Assembly in bill-drafting and
in clarity and unification of our statutes with existing laws. Apprecia-tion
is expressed for Joint Resolution No. 34, adopted by the General
Assembly of 1943, with respect to this work.
Division of Criminal and Civil Statistics
During the biennium the work in this division has been in the
charge of Mr. Clifton Beckwith. A report of the activities of this
division has been prepared by Mr. Beckwith and is made a part of this
statement. There is included as a part of the report a compilation of
statistics covering the activities of our criminal courts, other than
courts of justices of the peace, and a summarization of civil cases
tried in our Superior Courts.
A recommendation was made in the last Biennial Report that a bill
be enacted authorizing the inclusion in each bill of costs in each
civil and criminal case of a fee of ten cents to be paid to the reporting
officer of the superior and inferior courts making the reports, which
by law are required to be made to this department. The making of
these reports requires considerable amount of time and attention of
the clerks and the payment of this fee would be a strong inducement
to secure these reports promptly and completelj^
State Bureau of Investigation
There is included in this biennial report a report made by Mr.
Thomas Creekmore, Director of the Bureau of Investigation, covering
fully the activities of his division during the biennium. The character
of the work being done by the State Bureau of Investigation is being
more fully understood and appreciated by the sheriffs and police
officers, courts and the public concerned in criminal investigations.
This bureau has made available for every section of the State the
services of well-trained criminal investigators of crimes requiring
scientific study. The bureau has been fortunate in maintaining a high
27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 19
class of personnel during the biennium and, with the limited number
of investigators, has done an outstanding work in many important
criminal cases.
Recommendation: It is anticipated everywhere that following the
ending of the war and the adjustments which will have to be made
thereafter, we may reasonably expect a substantial increase in crime
throughout the State. This increase, if it occurs, will make further
demands upon this bureau and require the employment of an ad-ditional
number of special agents. I recommend that an appropriation
be made available in the event such condition arises, so that this need
may be taken care of.
Revenue Department and Motor Vehicle Department
Toe levy and collection of taxes imposed by the Revenue Act
necessarily requires a large amount of legal assistance. Under the
statute. Assistant Attorney General W. J. Adams, Jr., has during the
bienrsium been assigned to the Revenue Department and as his assist-ant
he has had the help of Mrs. Cornelia McK. Trott. With our
constantly expanding tax system and tax collections, legal problems
arisiiig in this department have been greatly multiplied. The legal
work required of the office of the Commissioner of Motor Vehicles
has likewise been largely imposed upon Mr. Adams and his assistant.
The heavy burden placed upon this office in performing its services
constitutes part of the basis of my recommendation that the next
General Assembly should authorize the appointment of one additional
Assistant Attorney General. Under the law as it now is, the number
of Assistant Attorneys General w^hich may be appointed is limited to
three.
In the event the General Assembly should authorize the increase of
the number of Assistant Attorneys General to four, the staff of this
office would still have all the work it could do. By comparison with
the legal staffs in other states, it would seem that the staff in North
Carolina, after this increase is made, will still be much less than any
other state of comparable size. In Indiana, for instance, which is not
as large a state as North Carolina, there are sixteen Assistant Attorneys
General. Fortunately for us, the amount of tax litigation in this State
has been small. If we had as much tax litigation as is found in other
states, the staff provided would be totally inadequate to handle it.
Office Conferences and Consultations With State Offices and
Departmental Officials
As required by the State Constitution, Article III, Section 14, and
the laws enacted in pursuance thereto, this office has continued to
serve as the legal adviser for the executive department. Throughout
the bienium we have had frequent conferences with each of the State
offices and departmental officials and, in many cases, have rendered
oral advisory opinions. We have participated in many conferences
held by various departments in the settlement of problems presented.
20 biennial report of the attorney general [vol.
Atlantic and North Carolina Railroad
The General Assembly of 1943 passed an Act, Chapter 412, author-izing
a loan by the State to the Atlantic and North Carolina Railroad
Company of $200,000, to be used with $400,000 provided by the United
States Navy in a rehabilitation program of the railroad.
The enactment of this legislation has resulted in the execution of a
contract between the Bureau of Yards and Docks of the United States
Navy and the Atlantic and North Carolina Railroad Company and the
Atlantic and East Carolina Railway Company, providing for the ex-penditure
of the $600,000, together with substantial expenditure by
the Atlantic and East Carolina Railway Company, chargeable to main-tenance
for the complete overhauling and rehabilitation of the tracks
and structures of this railroad.
As a result, the railroad will replace the old worn out 50 lb. rail with
80 lb. or 90 lb. rails from Goldsboro to Morehead City. Extensive drain-age
and ballasting projects have been carried on, and many of the
bridges and structures rebuilt. The railroad, at the completion of
the work, will be in excellent condition to handle the heavy traffic
which it is now required to transport.
The loan made by the State will be repaid in a period of five years
by additional revenues received by the Atlantic and North Carolina
Railroad Company from increased rentals paid by the operating com-pany.
The operating company has agreed to pay an additional rent
until these advances have been repaid, representing 5 per cent gross
revenues in excess of $475,000.
The advances made by the Navy Department are to be paid by
the operating railway by percentage reduction on navy freight and
cancellation of switching charges in the Cherry Point Base.
At the end of the operations, the Atlantic and North Carolina Rail-road
Company will, without cost to itself, have the completely rebuilt
roadway and track.
The rehabilitation program during the biennium has required con-tinuous
legal assistance from this Office in the negotiation and prepara-tion
of the numerous contracts and amended lease involved therein.
With the increased rentals now being paid by the operating railroad,
the Atlantic and North Carolina Railroad Company should, within a
few years, pay off the indebtedness now due the State. Since the
$200,000 loan, above referred to, has been made, the Atlantic and
North Carolina Railroad Company has paid on its account the sum of
$28,857.02. Indications are that the great base at Cherry Point will
be permanent in character and insure a large volume of freight and
passenger business to this railroad.
During the biennium, under the authority of Chapter 443 of the Ses-sion
Laws of 1943, the State Treasurer has taken up the outstanding
mortgage bonds of the Atlantic and North Carolina Railroad Company,
and the State is now the sole creditor of this company.
27j biennial report of the attorney general 21
Advisory Opinions to Local Officials
During the biennnium, the Department has continued the long
standing custom of furnishing advisory opinions to county, city and
local officials upon the many questions of administrative lawr and
procedure which have arisen in local government. The opinions of
this office, while not legally binding on the agency requesting same,
have been accepted as the method of settlement of numerous questions
which have arisen.
The efforts of this office to respond to numerous requests received
throughout this State for this character of advice have required ex-tensive
investigations of the law, and have constituted an important
part of our work. An effort is always made to secure the requests
for the opinions through the local legal advisers of the various local
units and clear the opinion of the office through them.
Available funds do not permit the publication in full of the numerous
opinions rendered to local officials. Digests of these opinions, however,
are published periodically in Popular Governvfient, the magazine of
the Institute of Government of the University of North Carolina.
Summaries of these opinions affecting municipalities are carried in a
digest mimeographed by the North Carolina League of Municipalities.
The press of the State has carried periodically digests of all opinions
of general application.
State Banking Commission
As an ex officio member of the State Banking Commission, the At-torney
General has sat with meetings of this Commission throughout
the biennium. The law creating this Commission makes the Attorney
General and the State Treasurer ex officio members thereof, and in-cludes
five members appointed by the Governor.
The Commission meets quarterly and upon special call. A re-port
of its activities will be made through the Commissioner of Banks.
Reference is made to the case of Arthur Pue v. Hood, Commissioner
of Banks, 222 N. C. 310, in which our courts upheld the discretionary
power of the Banking Commission to refuse the application for a
charter by an industrial bank.
Teachers' and State Employees' Retirement System in
North Carolina
As required by the Act, Chapter 25, Public Laws 1941, the Attorney
General has continued to act as the legal adviser of the Board of
Trustees.
The operations of this Agency have required, at frequent intervals,
the advice of this office. Thus far, no litigation has arisen respecting
its activities.
Unemployment Compensation Commission
As requested by the Unemployment Compensation Commission, the
Attorney Gneral's Office has furnished the legal opinions on important
questions which have arisen in connection with the application of its
22 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol.
laws during the biennium. The Commission has its own able legal
staff, but from time to time, it has found it desirable to call upon this
office for legal opinions, which we have always been glad to render.
Social Security Laws
During the biennium, this office has continued to act as the legal
adviser for the State Board of Charities and Public Welfare. The ex-tensive
operations of the State Board of Charities and Public Welfare
and its intimate contact with the life of the people of the State have
given rise to numerous, and sometimes complicated, legal questions.
Numerous opinions have been furnished to the State Board and
its departments, particularly the department concerned with child
welfare in adoption proceedings throughout the State.
This office has likewise been called upon to render legal opinions
and offer advice to the State Commission for the Blind. Important
questions of relationships with the Federal Government have arisen
during the biennium as to the work carried on by the workshops for
the blind, operated by the State Commission for the Blind. Satisfactory
adjustments for the controversy relating to this matter have been
worked out by conferences with Federal officials.
State Department of Agriculture
The State Department of Agriculture, in the performance of the
many and varied duties assigned by law to it and to the Commissioner
of Agriculture and to the State Board of Agriculture, has had frequent
occasions to call upon this office for services and legal advice.
Numerous office conferences have been held and on occasions
when public hearings were necessary to be had, involving adoption
of rules and regulations, and in the enforcement of regulatory
laws as to seed, feeds, and fertilizers and inspection of foods, etc.,
members of the Staff of this office have been called upon to participate.
The broad powers given to the Commissioner of Agriculture and
the State Board of Agriculture and the expanding function performed
by this important Department require frequently a great deal of legal
advice and service in ways too numerous to be mentioned. In all of
which, we have had the finest cooperation from the Commissioner of
Agriculture and the officials of his Department.
Summary of the Constitutional and Statutory Duties of the
Attorney General
To make a report upon all the activities of the Attorney General and
this Department, it would be necessary to go into greater detail than
is possible in this summary.
References are herein given to provisions of the Constitution of
North Carolina, and laws enacted in pursuance thereto, prescribing
the duties and functions of the Attorney General.
As legal adviser to the Council of State and as a member of the
various boards and commissions hereinafter listed, the participation
of the Attorney General in the consideration of matters coming before
27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 23
meetings of the Council of State and such boards and commissions
will be disclosed in the reports made therefrom. It is not required
that they should be further detailed in this Report.
The Constitution of North Carolina, Article III, Section 13, provides
that the duties of the "Attorney General shall be prescribed by law."
Pursuant to this section, the General Assembly has vested in the
Department of the Attorney General the following powers, obligations,
and duties:
G. S. 114-2. "Duties.—It shall be the duty of the attorney
general
—
"1. To defend all actions in the supreme court in which the
state shall be interested, or is a party; and also when requested
by the governor or either branch of the general assembly to appear
for the state in any court or tribunal in any cause or matter, civil
or criminal, in which the state may be a party or interested.
"2. At the request of the governor, secretary of state, treasurer,
auditor, corporation commissioners, insurance commissioner or
superintendent of public instruction, he shall prosecute and defend
all suits relating to matters connected with their departments.
"3. To represent all state institutions, including the state's
prison, whenever requested so to do by the official head of any such
institution.
"4. To consult with and advise the solicitors, when requested
by them, in all matters pertaining to the duties of their office.
"5. To give, when required, his opinion upon all questions of
law submitted to him by the general assembly, or by either branch
thereof, or by the governor, auditor, treasurer, or any other state
officer.
"6. To pay all moneys received for debts due or penalties to
the state immediately after the receipt thereof into the treasury."
In addition to these duties, the following ones are prescribed:
To institute actions to recover taxes due under the Revenue Act
(G. S. 105-239), and to approve all tax refunds made by the State
(G. S. 105-407).
To enforce the statutes relative to monopolies and trusts (G. S. 75-9
to 75-15).
To institute actions to prevent ulta vires acts on the part of cor-porations,
or to dissolve corporations for certain offenses (G. S. 55-47,
55-124,55-126).
To institute quo warranto proceedings to oust persons who have
usurped, who unlawfully hold, or who have forfeited public offices,
and to begin actions to protect State lands (G. S. 1-515).
To see that the solicitors prosecute violations of the act relating to
the practice of medicine (G. S. 90-21).
To enforce charitable trusts (G. S. 55-47).
To prescribe the rules of practice for land registration under the
Torrens Act (G. S. 43-3).
To institute proceedings for the dissolution of fraternal insurance
societies (G. S. 58-297 to 58-298).
To appear on behalf of the court or other officers on appeal in
contempt proceedings (G. S. 5-3).
To investigate extradition cases, at the request of the Governor (G. S.
15-58).
24 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol.
To institute actions to enforce the rulings and orders of the Utilities
Commission, and to represent said Commission in the enforcement of
intrastate rates before the Interstate Commerce Commission and in
federal or state courts (G. S. 62-63 and 62-6).
To give advice to the State Board of Elections as to the form of ballots
(G. S. 163-141).
To institute action against persons, firms or corporations who violate
the terms of the act regulating the quality of agricultural seeds. This
duty may be delegated to the attorney of the county or city in which
the violation occurred (G. S. 106-284).
To approve deeds and grants to the State of property given to, or
purchased by, it for park purposes (G. S. 113-34).
To collect from inmates of state institutions the cost of their upkeep,
provided they are able to pay (G. S. 143-124).
To approve the grant of easements by state institutions to public-service
corporations (G. S. 143-151).
To act as legal adviser and institute necessary condemnation pro-ceedings
for the North Carolina Cape Hatteras Seashore Commission
(Ch. 257, P. L. 1939).
To enforce rules and regulations adopted by the Commissioner of
Labor relating to safety devices (G. S. 95-13).
To witness the burning of cancelled State bonds and coupons (G. S.
142-13).
To collect the delinquent taxes due the State Board of Health (G. S.
130-13).
The Attorney General is a member of, or adviser to, the following
boards, councils, and commissions: Legal adviser to the Executive
Department (Const., Art. Ill, S. 14); member of the State Board of
Assessments (G. S. 105-273), of Advisory Board of Paroles (G. S. 148-
50), of State Banking Commission (G. S. 53-92), of Board of Public
Buildings and Grounds (G. S. 129-2), of Municipal Board of Control
(G. S. 160-195), of the Eugenics Board (G. S. 35-40); and the Board
of Advisers of the World War Veterans Loan Fund (G. S. 143-71).
Appeals in Criminal Cases
In Exhibit II will be found a list of criminal cases which were
argued by the Attorney General and his Assistants before the Supreme
Court for the Fall Term 1942, Spring Term 1943, Fall Term 1943,
and Spring Term 1944.
Summary of Important Civil and Criminal Cases
The following is a brief statement of matters involved in civil
and criminal cases of more than usual interest and importance.
Civil Cases
Dan W. McLean v. Durham County Board of Elections, 222 N. C. 6
The plaintiff filed a petition in the Superior Court of Durham County
for a mandamus to require the Durham County Board of Elections to
print petitioner's name on the official ballot for the November 1942,
27J BIENNIAL REPORT OF THE ATTORNEY GENERAL 25
election as the Republican candidate for Clerk of the Superior Court
of Durham County. The nomination was made by the convention
method instead of by participation in the primary election. A demurrer
was filed to the petition in the Superior Court and when the cause
came on to be heard on the demurrer, an order was entered sustaining
the demurrer and denying the writ of mandamus. , The plaintiff ex-cepted
and appealed to the Supreme Court. The case was heard in
the Supreme Court and the judgment of the lower court was affirmed.
Arthur Pue, et al. v. Gurney P. Hood, Commissioner of Banks, et al.,
222 N. C. 310
The plaintiffs filed with the Secretary of State of North Carolina a
proposed certificate of incorporation of an industrial bank. The Com-misisoner
of Banks, after holding a public meeting, found certain facts
find concluded that in his opinion the public convenience and advantage
(vould not be promoted by the establishment of the proposed bank.
The report was submitted to the State Banking Commission which
directed the finding of additional facts and approved his conclusion.
Thereafter, his conclusion was certified to the Secretary of State who
declined to issue the proposed charter. The plaintiffs then instituted
an action in the Superior Court of Guilford County to require the
issuance of a charter to the proposed bank. The case was removed to
Wake County and the defendants filed a demurrer to the complaint,
on the ground that the complaint did not state facts sufficient to con-stitute
a cause of action. When the cause came on to be heard in
the Superior Court of Wake County, the demurrer was sustained and
judgment entered dismissing the action. Plaintiff excepted and ap-pealed
to the Supreme Court and, upon the matter being heard in the
Supreme Court, the judgment of the court below was affirmed.
J. M. Hunsucker, et al. v. Stanley Winhorne, et al., Constituting the
Municipal Board of Control of North Carolina, 223 N. C. 650
The Municipal Board of Control of North Carolina, upon petition
being filed on January 25, 1943, entered an order changing the name
of the Town of Hemp to that of Robbins. The plaintiffs, who were
citizens and taxpayers of the municipality, instituted an action to re-strain
the execution of the order changing the name of the Town of
Hemp to Robbins. The defendants filed a demurrer to the complaint
and, upon the hearing in the Superior Court of Wake County, the
demurrer of the defendants was sustained. The temporary restraining
order theretofore granted was dissolved and the action dismissed. The
plaintiffs appealed to the Supreme Court of North Carolina. The
Supreme Court, in affirming the judgment of the court below, held
that if the Municipal Board of Control should err in its findings, the
error may be corrected by the Superior Court upon a writ of certiorari
but there is no provision in the statute for an appeal.
26 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol.
D. M. Warren, et al. v. A. J. Maxwell, et al., 223 N. C. 604
The plaintiffs, who constitute the Board of County Commissioners
Board of Equalization and Review and Tax Supervisors of Chowan
County, sought a peremptory mandamus to require the receivers of the
Norfolk Southern Railroad Company to list with the State Board of
Assessment for the year 1941, as a part of its track, roadbed and
right of way, that part of its road running from Edenton, in Chowan
County, to the Virginia state line, and to compel the State Board of
Assessment to include the same in determining the pro rata part of the
total valuation of the railroad in North Carolina to be apportioned to
Chowan County for that year. In the Superior Court of Wake County,
the defendants demurred ore tenus to the complaint on the ground
that it failed to state a cause of action. The trial judge reserved his
ruling on the demurrer and heard the matter on its merits. At the
conclusion of all the evidence, upon motion of the defendants, judgment
was entered nonsuiting the plaintiffs. Upon appeal to the Supreme
Court, the judgment of the lower court was affirmed.
State of North Carolina ex rel. North Carolina Utilities Commission v.
Atlantic Greyhound Corporation, et al., 224 N. C. 293
The North Carolina Utilities Commission, in amending Rule No.
22 of its rules and regulations for the operation of union bus stations,
required carriers operating from a common station where tickets are
sold to a common destination to honor tickets of one another between
said points. After the entry of the regulation making this change,
the defendants, who are common carriers by motor vehicles engaged
in the transportation of passengers within the State of North Carolina,
filed with the Utilities Commission a special appearance and moved to
vacate the amendment to Rule No. 22. The Utilities Commission
denied the relief sought and the defendants appealed to the Superior
Court of Wake County. In the Superior Court, the Utilities Commis-sion
entered a motion to dismiss the appeal on the ground, among others,
that the amendment to the rule objected to did not afford grounds
and basis for an appeal by the defendants. The trial judge allowed the
motion and judgment was entered dismissing the appeal. Thereupon,
the defendants appealed to the Supreme Court. The Supreme Court,
in affirming the judgment of the court below, held that no procedure
for appeals to the courts from rules and regulations of the Utilities
Commission having been prescribed by statute, the validity thereof
could not be challenged by appeal.
State of North Carolina ex rel., Utilities Commission v. Atlantic
Greyhound Corporation, et al.
The North Carolina Utilities Commission entered a general order
or regulation requiring that the destination and connections of all
buses operating out of union station be announced. The defendants,
who are carriers and would be affected by the order or regulation,
appeared before the Utilities Commission and moved that the order
27J BIENNIAL REPORT OF THE ATTORNEY GENERAL 27
or regulation be vacated. Upon the refusal of the Utilities Commission
to vacate the order or regulation, the defendants appealed to the
Superior Court of Wake County. The Utilities Commission made a
motion in the Superior Court of Wake County to dismiss the appeal on
the ground that the promulgation of this rule or order did not afford
ground and basis for an appeal by the defendant. The court allowed
the motion and entered judgment dismissing the appeal. The defend-ants
gave notice of appeal to the Supreme Court but have not, as yet,
perfected their appeal.
State of North Carolina ex rel., Utilities Commission v. Atlantic Coast
Line Railroad Company, 224 N C. 283
The North Carolina Utilities Commission entered an order holding
that the pulpwood rates contained in the Atlantic Coast Line Railroad
Company's tariff schedule, to the extent that they exceeded the maxi-mum
level permitted under an outstanding order of the Commission
dated June 12, 1939, were unlawful and that the continued refusal to
obey the previous order of the Commission rendered the Railroad
Company liable to an action for the penalty prescribed by the statute.
The defendant excepted to this order on the ground that the Utilities
Commision was without authority to issue the order for the reason
that the Commission had not proceeded in accordance with the statute,
and that the tariff filed by the defendant was valid in every respect.
The defendant's exceptions were overruled and, upon appeal to the
Superior Court of Wake County, the ruling of the Utilities Commis-sion
w^as in all respects affirmed. Upon appeal to the Supreme Court
of North Carolina, the judgment of the Superior Court was upheld.
Industrial Commission Cases
Gilmore v. Board of Education
This was an action instituted by the widow and children of Dean
Gilmore, deceased, against the Hoke County Board of Education and
its insurance carrier and the State School Commission. Gilmore suf-fered
an injury to his right leg in a fall sustained while washing
windows in the new gymnasium of the Hoke County High School.
He later partially recovered from the injury but died before being
able to return to work. Upon a hearing before the Commissioner,
compensation was awarded against the Hoke County Board of Educa-tion
and its insurance carrier. The Commissioner held that there
was no liability as against the State School Commission. The same
result was reached by the Full Commission and upon appeal to the
Superior Court of Hoke County, the findings of fact and conclusions
of law of the Commission were affirmed. The defendants appealed to
the Supreme Court of North Carolina. The Supreme Court, in reversing
the judgment of the court below, held that upon the evidence in the
record, the death of Gilmore did not result proximately from the
accident and that compensation was not allowable. Gilmore v. Board
of Education, 222 N. C. 358.
28 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol.
Callihan v. Board of Education
This was an action brought before the Industrial Commission against
the Board of Education of Robeson County, the State School Commis-sion,
et al., by the widow and children of William B. Callihan, deceased,
for compensation under the provisions of the Workmen's Compensation
Act. Callihan was a teacher of vocational agriculture in the Robeson
County schools and was killed in an automobile accident on a public
highway en route from St. Pauls to Lumberton to attend a monthly
meeting in connection with his vocational work. The Commission
held that the Robeson County Board of Education was the sole em-ployer
and made an award against the County Board of Education
and its insurance carrier. The Robeson County Board of Education
and its insurance carrier appealed to the Superior Court, where the
award was sustained and an appeal was taken to the Supreme Court.
In the Supreme Court the judgment of the court below was sustained.
Callihan v. Board of Education, 222 N. C. 381.
J. J. Johnson v. North Carolina Department of Highway Patrol,
Department of Revenue
This was an action brought before the Industrial Commission by J. J.
Johnson, a member of the North Carolina State Highway Patrol, on
account of injuries sustained by jumping or stepping from the porch
of his home in Alexander County. At the time of the injury, plaintiff
had gone to his home for the purpose of eating his lunch. As he started
to leave his house, he twisted his ankle by either jumping from or
stepping from his porch instead of using the steps of the porch. The
hearing Commissioner denied compensation and his action was ap-proved
upon appeal to the Full Commission. The plaintiff thereupon
appealed to the Superior Court of Alexander County and the trial
judge entered judgment affirming the award of the Industrial Com^
mission, denying compensation to the plaintiff. No appeal was taken
from this judgment.
Kenneth M. Jones, Administrator of the Estate of Hollis Snipes,
Deceased v. University of North Carolina
This was an action brought by the administrator of the estate of
Hollis Snipes, deceased, before the Industrial Commission, seeking
to recover compensation under the provisions of the Workmen's
Compensation Act for the death of Hollis Snipes, an employee of the
University of North Carolina. Snipes sustained an injury by an
accident arising out of and in the course of his employment when
he was cut on the back of the left hand with a scythe. After several
days had intervened, he was taken to a hospital in Durham. On
the tenth day in the hospital, after he had almost entirely recovered,
he developed pneumonia and within a short time died. Upon a hearing
before the Commissioner, it was found that Snipes died from pneumonia
and that the pneumonia was in no way related to the injury by accident
to his hand. Claim for compensation was denied and the defendant
did not appeal.
27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 29
Jeannett A. Noel v. Edson B. Olds, et al. (Ackland Will Case)
A statement of this case was contained in the last Biennial Report,
apearing on pages 25, 26, and 27. At the time this Report was filed,
the case was pending on appeal in the United States District Court of the
District of Columbia.
In this case, the next of kin of William Hayes Ackland were seeking
to be declared entitled to receive the residuary trust created by Mr.
Ackland, amounting to approximately $1,400,000, which had been
willed to Duke University to create an art museum and memorial to
the testator. Upon refusal of Duke University to accept the gift, the
University of North Carolina intervened and asserted the right to
receive the gift under the cy pres doctrine. Rollins College also claimed
the benefit of the fund under the same doctrine.
Former Governor O. Max Gardner was first to present this matter
to the Board of Trustees of the University of North Carolina, and
proposed to handle the litigation for the State without any compensa-tion
for his services. The Attorney General has appeared in the
litigation with Governor Gardner and his Washington, D. C. law firm.
The case was ably argued by Governor Gardner for the University
of North Carolina in the Circuit Court of Appeals of the District
of Columbia, and resulted in an opinion written by Justice Justin
Miller, in which the cy pres doctrine was upheld and declared ap-plicable
to the case. The motion of the University of North Carolina
to intervene was allowed and the case remanded to the District Judge
for further procedure in accordance with the opinion.
Justice Bailey, the District Judge, has entered an order asking for
recommendations from the Trustees as to what institution of learning
should be the main beneficiary of the gift from Mr. Ackland, and this
matter is now pending in the District Court.
W. F. Logan v. J. R. Cline, Sherijf, Edwin Gill, Commissioner of
Revenue of North Carolina, and Charles M. Johnson, Treasurer
This was an action instituted in the Superior Court of Cleveland
County to recover privilege taxes assessed against plaintiff under
the authority of Section 150 of the Revenue Act, and paid under
protest. Judgment was rendered for the defendants and no appeal
was taken by the plaintiff.
State V. Thomas M. Stanton
This was a prosecution in the Superior Court of Wake County
commenced at the instance of the Commissioner of Revenue and based
upon the defendant's violation of the provisions of Section 336 of
the Revenue Act in failing to file his income tax return for the
year 1940. After a true bill of indictment had been found by the
Grand Jury, the defendant paid to the Commissioner of Revenue the
sum of $686.89, representing all income tax, penalty and interest due
for the years 1937-1940, both inclusive. At the trial, the defendant
pleaded nolo contendere, whereupon, upon the recommendation of
30 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol.
the Commissioner, the Court continued prayer for judgment for five
years on condition that the defendant annually file income tax returns
as provided by law, and pay the costs.
George Kostakes, Trading as Kostakes Novelty Company v. Edwin
Gill, Commissioner of Revenue and G. Mack Riley,
Sheriff of Mecklenburg County
[n this action in the Superior Court of Mecklenburg County, the
plaintiff sought an injunction against the defendants for the purpose
of restraining them from proceeding with a tax execution agamst
plaintiff's property. The Court dissolved the restraining order, and
the case was settled by nonsuit upon the execution by the plaintiff
of a note and mortgage for the tax indebtedness.
G. H. Valentine, Executor of the Estate of Charles Treadwell Trask v.
Edwin Gill, Commissioner of Revenue
This was a controversy without action to determine whether the
plaintiff was liable for inheritance tax assessed by the defendant and
paid by the plaintiff under protest. The action involved a con-struction
of Section 12 of the Revenue Act. Judgment was rendered
in the Superior Court for the defendant. This judgment was affirn;ied
on appeal to the Supreme Court. See 223 N. C. 396.
Asheville Livestock Yards v. Edwin Gill, Commisioner of Revenue
(2 cases)
These were actions brought in the Superior Court of Buncombe
County to recover privilege taxes assessed by defendant under
Section 115 of the Revenue Act, and paid by plaintiff under protest.
Judgment was rendered for plaintiff, and the defendant did not
appeal.
Leonard Safrit v. Ronald Hocutt, Director, Highway Safety Division
This was a petition for the restoration of petitioner's driver's license.
The matter was heard in the Superior Court of Carteret County.
Judgment was rendered for the respondent, and no appeal was
taken.
C. B. Brown v. Edwin Gill, Commissioner of Revenue
This was an action instituted in the Superior Court of Onslow
County for the recovery of sales tax paid under protest to the de-fendant
by the plaintiff. After a thorough investigation, the de-fendant
consented to a judgment for plaintiff.
James Cooper v. T. Boddie Ward, Commissioner of Motor Vehicles
This was an action instituted in the Superior Court of Wake County
by which the plaintiff sought a mandamus to compel defendant to
return his driver's license which had been taken up by the Superior
Court of Forsyth County. Judgment was rendered for the defendant
27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 31
in the Superior Court. On appeal, the Supreme Court affirmed the
judgment of the lower court, dismissing this action, but giving plaintiff
the requested relief by treating the action as a petition for a writ
of certiorari to the Superior Court of Forsyth County, and granting
the writ and correcting the judgment of the Superior Court of Forsyth
Coimty. See 224 N. C. 99 and 224 N. C. 100.
State V. Nick D. Kaperonis
This was a prosecution commenced in the Recorder's Court of the
City of Charlotte at the instance of the Commissioner of Revenue
against the defendant for a violation of Section 422 of the Revenue
Act in the alleged willful filing of false sales tax returns. Upon the
payment to the State, or a security for payment to the State, of over
316,000 in sales tax, penalties and interest, the Court accepted the
defendant's plea of nolo contendere and continued prayer for judg-ment
indefinitely.
North Carolina Mortgage Corporation v. A. J. Maxwell, Commissioner
of Revenue (tivo cases)
The plaintiff submitted to a nonsuit in these actions in the Superior
Court of Wake County, which involved franchise taxes on corporations
formed to liquidate mortgages or mortgaged property taken in fore-closure.
Burroughs Adding Machine Company v. Edwin Gill,
Commissioner of Revenue
This is an action commenced in the Superior Court of Wake County
by the plaintiff, a foreign corporation, for the recovery of income
and franchise taxes based on the alleged invalidity of the allocation
formula prescribed in Sections 210 and 311 of the Revenue Act for
the determination of the portion of plaintiff's capital stock, surplus,
and undivided profits, and the portion of plaintiff's income, to be
taxed by North Carolina. Answer has been filed and this action is
now pending.
General Motors Corporation v. Doughton (two cases)
These actions were instituted in the Superior Court of Wake County
in 1926 for the recovery of privilege license- taxes for the sale of auto-mobiles
levied by Section 72 of the Public Laws of 1921 and Section
78 of the Public Laws of 1923 and 1925, and paid by the plaintiff
under protest. The actions have never been disposed of and are
still pending.
State of North Carolina, in the Relation of the Commissioner of
Revenue v. The American Tobacco Company
This action in the Superior Court of Wake County has been pend-ing
since 1940 and involves the question whether State income and
franchise taxes may be measured, in part, by imported Turkish
32 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol.
Tobacco stored in customs warehouses in this State and awaiting
manufacture. The Company contends that the imports clause of the
federal constitution forbids the use, as a measure, of imported property
in the original packages and still in customs custody.
Criminal Cases
State V. Howard, 222 N. C. 291
The defendant was indicted in the Superior Court of Wake County
on two separate bills of indictment, one bill charging him with em-bezzling
property of the State of North Carolina while an officer and
agent of the State and cashier in the North Carolina Department of
Revenue, and the other bill charging him with aiding and abetting
one C. W. Snead, another officer and employee of the State, in
embezzling property of the State. The defendant was convicted on
both charges and appealed to the Supreme Court. The Supreme
Court found no error in connection with the trial in the lower
court.
State V. Ward, 222 N. C. 316
The defendant, Robert L. Ward, Jr., was tried in the Superior
Court of Wake County, North Carolina, on three bills of indictment
charging embezzlement and aiding and abetting in the crime of em-bezzlement.
The three cases were by consent consolidated for the
purpose of trial and each bill considered as a separate count. From
1938 to 1941 the defendant was auditor and Chief of the Division
of Accounts and Records in the Department of Revenue of the
State of North Carolina. There was a verdict of guilty as to each
count on which the defendant was tried and from the judgment
pronounced on the verdict of the jury, the defendant appealed to the
Supreme Court. After a careful examination of all the exceptions
entered by the defendant in the lower court, the Supreme Court
found no error of sufficient merit to justify a new trial.
State V. Pelley, 222 N. C. 684
The defendant, William Dudley Pelley, was convicted in the year
1935 in the Superior Court of Buncombe County on the charge of a
violation of the Capital Issues Law of the State of North Carolina.
He was given a suspended sentence and thereafter the suspended
sentence was put into effect and the defendant appealed to the
Supreme Court of North Carolina, where the action of the lower
court was affirmed
—
State v. Pelley, 221 N. C. 487. Pending his ap-peal
to the Supreme Court of North Carolina, the defendant was
released on a bail bond in the sum of $10,000.00 executed by the
defendant, as principal, and Carrie Thrash Dorsell and George B.
Fisher, as sureties. The bond was conditioned upon the appearance
of the defendant at the next term of the Superior Court of Buncombe
County to be held after the judgment of the Supreme Court of North
Carolina was handed down and then and there to abide judgment
27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 33
of the court. The defendant failed to appear as required by the bond
and was called and failed to answer. A set fas was issued and the
sureties filed answer, contending that they had been relieved from
liability on the bond, due to the fact that the defendant had been
taken into custody by the United States Marshal for the Southern
District of Indiana for removal to the United States District Court
of the District of Columbia, upon an indictment charging certain
federal offenses. Judgment absolute on the bond was entered in
the court below and the sureties on the bond appealed to the Supreme
Court assigning error. The judgment of the court below was af-firmed
by the Supreme Court.
State V. Lippard, 223 N. C. 167
The defendants, Carl Lippard and Paul Lippard, were indicted
in the Superior Court of Mecklenburg County on the charge of a
conspiracy to violate the laws of the State of North Carolina relating
to intoxicating liquor. In the court below the defendants pleaded
former jeopardy, contending that they had theretofore been tried
for the offenses which were to be used as a basis for the establishment
of the crime of conspiracy. The court below refused to allow the
defendants' plea for dismissal based upon former convictions and
double jeopardy and the defendants, after being convicted by the
jury, excepted and appealed to the Supreme Court. The Supreme
Court held that the charge of conspiracy to violate the law and the
charge of the consummation of the conspiracy being an actual violation
of the law are charges of separate offenses and that a conviction of
one cannot be successfully pleaded as former jeopardy on an indict-ment
for the other. No error was found in the trial below.
State V. Williams and Hendrix, 224 N. C. 183
A series of North Carolina decisions hold that a divorce decree
obtained from a North Carolina defendant in a State in which only
the plaintiff is domiciled and in which the defendant is not personally
served with process and makes no appearance will be treated as void
in North Carolina. It was thought that these decisions were sanc-tioned
by the decision of the United States Supreme Court in
Haddock v. Haddock, 201 U. S. 562, but the constitutionality of the
North Carolina rule was challenged in State v. Williams and Hendrix.
The defendants, convicted of bigamous cohabitation in Caldwell
County, had obtained in Nevada divorces from their North Carolina
spouses on service by publication, had married, and had lived to-gether
in North Carolina. Their contention that the Nevada divorce
decrees were entitled to full faith and credit under Article IV, Sec-tion
1, of the United States Constitution, was rejected by the North
Carolina Supreme Court in State v. Williams and Hendrix, 220 N. C.
445. A writ of certiorari was granted by the United States Supreme
Court and the case was heard by that Court at the October Term,
1942. The United States Supreme Court overruled the decision of
34 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol.
Haddock v. Haddock, 201 U. S. 562, reversed the conviction of the
defendants, and remanded the case for further proceedings, 317 U. S.
287. The Supreme Court of North Carolina remanded the case to
the Superior Court of Caldwell County for a new trial, 223 N. C.
609. In this prosecution, the State proceeded upon the theory that
the plaintiffs in the divorce actions had acquired no bona fide resi-dences
in Nevada. The jury accepted the State's contentions and
again returned a verdict of guilty. The North Carolina Supreme
Court affirmed the conviction. A writ of certiorari was granted by
the United States Supreme Court and the case will be heard by that
Court at the October Term, 1944.
State V. Gordon, 224 N. C. 304
The defendant, John Gordon, was tried in the Superior Court
of Wake County on charges of violating certain provisions of the
prohibition law. Whiskey had been delivered to a motor carrier in
Maryland for delivery in South Carolina. The truck which was
carrying the whiskey was found in the possession of the defendant
with an automobile backed up to the rear thereof while the defendant
was apparently in the act of transferring cases of whiskey from the
truck to the car. In the trial, the judge instructed the jury that it
was immateral that the whiskey was an interstate shipment if they
(the jury) should find beyond a reasonable doubt that the defendant
took possession of it and had it in his possession for the purpose of
sale in this county. The jury returned a verdict of guilty and the
defendant appealed to the Supreme Court. The Supreme Court af-firmed
the conviction of the defendant, saying that a cargo of liquor
started on its way as an interstate shipment may be diverted to
unlawful purposes and the nature of the shipment does not license
the one in possession to dispose of it at v/ill in this State.
State V. Hall, 224 N. C. 314
The defendant, Bert Hall, was charged in the Recorder's Court
of Cumberland County with unlawful possession and transportation
of 323 cases of intoxicating liquor. To this charge he pleaded guilty,
and judgment was thereupon rendered imposing sentence upon him,
and also in accordance with the North Carolina statute, decreeing
confiscation and forfeiture of the liquor. From this judgment there
was no appeal. Subsequent to this conviction, Roadway Express In-corporated
filed a petition and interplea in the cause in the Recorder's
Court, alleging title to the 323 cases of liquor as bailee, and asked
that immediate possession thereof be surrendered to it. The inter-pleader
further alleged that it had no knowledge of any unlawful
acts on the part of Hall; that Hall was not its employee; that it did
not authorize Hall to maintain possession of the liquor except for
the purpose of operating the truck and transporting the whiskey
from Maryland to South Carolina, and that proper shipping papers
were issued at the time of making the shipment. Judgment was
entered in the Recorder's Court overruling the motion and interplea
27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 35
of Roadway Express Incorporated, and confirming the disposition
of the liquor as ordered in the original judgment in the criminal
action. The petitioner appealed to the Superior Court.* It was
thereupon ordered that the judgment of the Recorder be overruled
and that Roadway Express Incorporated, as bailee, was entitled to
the immediate possession of the 323 cases of whiskey. To this
order the State and the Cumberland County Alcoholic Beverage
Control Board excepted and appealed. The Supreme Court reversed
the judgment of the Superior Court, holding that where one who
was in possession of seized liquor at the time he was arrested for
unlawful acts with respect thereto pleads guilty to or is convicted
of charges of unlawful possession and unlawful transportation of this
liquor and thereupon personal judgment is rendered against him, the
provisions of G. S. 18-6 are mandatory that the judgment also order
the confiscation and forfeiture of the liquor so unlawfully possessed
and transported. The court held further that when a cargo of in-toxicating
liquor, though started on its way as an interstate shipment,
is diverted to unlawful purposes in violation of the law of the state
in which it has come to rest, the initial character of the shipment
does not clothe those in possession with immunity from prescribed
penalties or oust the jurisdiction of the state courts, either as to
person or property.
OPINIONS TO GOVERNOR
Double Office Holding; Clerk to Rationing Board and
Notary Public
14 August, 1942.
I have your letter of August 11, 1942, in which you inquire
whether Mr. Lew Williams, who states that he is an "Assistant" to
the Forsyth Rationing and War Price Board, would be disqualified
to hold the office of Notary Public by reason of the fact that he is
holding a Federal office.
I am informed by the Office of Price Administration in Raleigh
that technically there is no such position as "Assistant" to a ration-ing
board. I assume, therefore, that Mr. Williams is a clerk to the
board. Clerks to rationing boards do not have to exercise independent
or official discretion with reference to matters that come before
them. They act under instructions from the board and their acts are
ratified by the board. Their work is primarily clerical in nature.
The test of whether a position constitutes a public office within the
meaning of our constitutional prohibition against double office hold-ing,
as stated in State v. Smith, 145 N. C. 476, is whether the in-dividual
involved is delegated some of the sovereign functions of the
government. Where a person is merely an employee and his duties
are clerical only, I do not think he would be considered a public
officer. I, therefore, advise that there is no constitutional obstacle
to the appointment of clerks and other clerical employees of a ration-ing
board to the position of Notary Public.
Officers; Dual Office Holding; Notary Public—Member of
Home Guard
22 September, 1942.
The constitutional provision against dual office holding, Article
XIV, Section 7, excepts officers in the militia. Therefore, an officer
in the Home Guard, which is a part of the State militia, would not
be prevented thereby from at the same time acting as a Notary
Public or holding any other office.
I am enclosing you copy of the opinion rendered by me to Mr.
Leonadas Hux on the subject of double office holding as affecting
commissioned officers in the United States Army, Navy and Marine
Corps.
Inland Waterway
15 October, 1942.
. I have your letter of October 13, enclosing copy of a letter from
Colonel W. S. Moore, District Engineer, Wilmington, North Carolina,
requesting the. State to provide a tract of land containing about 110
acres, located in Brunswick County about nine miles west of South-port,
found to be necessary by the United States engineers in order
[Vol. 27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 37
to remove shoals which might interfere with the movement of oil in
barges from Florida to northern points.
He advises that an enlargement of the waterway from a channel of
8 feet deep and 75 feet wide to a channel of 12 feet deep and 90 feet
wide was authorized by the River and Harbor Act of August 26, 1937,
in which it was provided that local interests should furnish free of
cost to the United States necessary rights-of-way and spoil disposal
areas for new work and subsequent maintenance. You are requested
to advise whether or not the State may be expected to furnish to the
United States, without cost, the additional right-of-way now re-quired.
Chapter 2 of the Public Laws of 1931, entitled "An Act to Provide
a Right-of-way for the United States Government for the Inland
Waterway from the Cape Fear River at Southport to the North
Carolina-South Carolina Line," is the only authority which the State
has to provide the right-of-way in this territory. This Act recites
the Act of Congress approved July 3, 1930, authorizing the construc-tion
of an Intracoastal Waterway from the Cape Fear River at South-port
to and beyond the North Carolina-South Carolina State Line,
in accordance with a report submitted to the 71st Congress, First
Session, providing for a right-of-way of specified width, depending
upon the elevation of the land above mean low water. The preamble
of this Act recited that the State desired to accomplish the condition
imposed upon local interests and furnish the right-of-way for the
waterway as provided in the report of the engineers.
No action has been taken by our Legislature since the Act of Con-gress
of August 26, 1937, and I am unable to find any authority given
by the Legislature of this State to provide any additional right-of-way
for the United States, which is found to be necessary by reason of
conditions referred to in the letter from Colonel W. S. Moore. The
appropriation provided in Chapter 2 of the Public Laws of 1931 has
been completely expended, and, in addition thereto, some funds were
provided from the Contingency and Emergency Fund. I, therefore,
regret to state that I am unable to advise you of any authority which
would permit the State to provide the Federal Government with the
additional land which is now needed.
Notaries; Eligibility for Appointment; Residence Requirements
21 October, 1942.
You inquire as to whether a person who resides in one county
in the State is entitled to receive a commission as a notary public in
another county in the State in which such person is temporarily
employed.
Section 3172 of Michie's North Carolina Code of 1939 Annotated
provides that the Governor may, from time to time, at his discretion,
appoint one or more fit persons in every county to act as notaries
public and shall issue to each a commission.
Section 3173 provides that upon exhibiting their commission to
the Clerk of the Superior Court in the county in which they are to
38 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol.
act, the notaries shall be duly qualified by taking before said Clerk
an oath of office and the oaths prescribed for officers. It further
provides that a certificate of the commission shall be deposited with
the Clerk and filed among the records and that the Clerk shall note
on his minutes the qualifications of the notary public.
Section 3176 provides that notaries have full power and authority
to perform the functions of their office in any and all counties of
the State and full faith and credit shall be given to any of their
official acts wheresoever the same shall be made and done.
The Supreme Court of North Carolina, in the case of Harris v.
Watson, 201 N. C. 661, holds that the office of notary public is a
public office within the meaning of Article XIV, Section 7, of the
Constitution, which prohibits double office holding.
Article 6, Section 7, of the Constitution of North Carolina, pro-vides
that every voter in North Carolina, except as in Article 6 dis-qualified,
shall be eligible to public office.
Section 25 of the Election Laws of North Carolina, being Section
5937 of Michie's North Carolina Code of 1939 Annotated, provides
that, subject to certain exceptions contained in Section 5936, every
person who has been naturalized and who shall have resided in the
State of North Carolina for one year and in the precinct, ward, or
other election district in which he offers to vote four months next
preceding the election shall, if otherwise qualified, be a qualified
elector in the precinct or ward or township in which he resides.
Although it is my thought that it might be advisable to confine the
appointment of notaries public to the county in which they actually
reside, I am unable to find anything in the statutes which, to my
mind, would prevent the Governor of North Carolina from appointing
a person a notary public in a county in which such person temporarily
resides and intends to act, although the person's actual residence is
in another county in the State.
Purchase and Contract; Sale of Typew^riters Belonging to State
8 December, 1942.
I acknowledge receipt of your letter of the 7th inst., in which
you state that the Army and Navy are in immediate need of six
hundred thousand typewriters, and that the typewriter manufacturers
have converted their factories to the production of other more es-sential
war materials, necessitating the War Production Board de-manding
that typewriters be supplied by all business firms. State,
county and local governments from those that are now in their
possession.
You inquire whether or not the State purchasing agency may
sell to the Federal Government without competitive bidding when
the funds so received are placed in a sinking fund, with the under-standing
that when the war is over, additional money would be
added in order that new typewriters may be purchased.
While it is my understanding that the Department of Purchase
and Contract requires competitive bidding for the sale of any State
27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 39
owned property, I find no statute specifically requiring that com-petitive
bidding be had before typewriters and other articles of
personal property can be sold. I am of the opinion that under the
present national emergency, the State may sell to the Federal Gov-ernment
typewriters and similar articles of personal property without
competitive bidding.
Criminal Law; Control and Treatment of Venereal Diseases;
Maximum Sentence for Failure to Take Treatments
26 February, 1943.
On yesterday Associate Justice Barnhill, of the Supreme Court of
North Carolina, heard a petition for a writ of habeas corpus filed
by one Ruby Ingle, who was tried in the police court of the City of
Asheville on the 11th day of January on a charge that she wilfully
failed, neglected and refused to take treatment for venereal disease,
as provided by Section 3, Chapter 206, of the Public Laws of 1919.
She was given a sentence of eight months in the common jail of
Buncombe County to be worked under the supervision of the State
Highway and Public Works Commission and was committed to the
State Prison on January 18, 1943. At the time of the hearing, she
had served over thirty days of her sentence.
Section 7198 of Michie's North Carolina Code of 1939 Annotated,
which is Section 8, of Chapter 206, of the Public Laws of 1919,
provides
:
"Any person who shall violate any of the provisions of this part
of this article or any lawful rule or regulation made by the North
Carolina state board of health pursuant to the authority herein
granted, or who shall fail or refuse to obey any lawful order issued
by any state, county, or municipal health officer, pursuant to the
authority granted in this article, shall be deemed guilty of a mis-demeanor,
and shall be punished by a fine of not less than twenty-five
dollars, nor more than fifty dollars, or by imprisonment for not
more than thirty days."
Justice Barnhill, on +he showing that the prisoner had served
more than thirty days, granted the writ of habeas corpus and ordered
the prison authorities of the State of North Carolina to release and
discharge the prisoner. I am informed that there are several other
women prisoners now confined in the Women's Division of the State's
Prison who have been sentenced to be confined for a longer period
than thirty, days solely for failure to take the treatment for venereal
disease. Some of these prisoners are in need of further treatment
and some, I am informed, do not need further treatment for venereal
disease.
Under the provisions of Section 7198, above referred to, the
maximum sentence which may be imposed upon a defendant is thirty
days imprisonment and those persons who are now in the Women's
Division of the State Prison and who have served more than thirty
days on a sentence pronounced under the provisions of this Section
are being illegally detained, unless they require further treatment
for venereal disease.
40 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol.
Under the provisions of Section 3, of Chapter 257, of the Public
Laws of 1935, which appears in Michie's North Carolina Code of
1939 Annotated as Section 7716, the State Highway and Public
Works Commission is authorized to provide within the bounds ol
Central Prison at Raleigh, or elsewhere in the State, suitable quarters
for women prisoners and arrange for work suitable to their capacity,
and the several courts of the State are authorized to assign women
convicted of offenses, whether felonies or misdemeanors, to such
quarters so provided, but no woman prisoner is to be assigned to
work under the supervision of the State Highway and Public Works
Commission whose term of imprisonment is less than six months or
who is under eighteen years of age.
Therefore, the women prisoners who were sentenced under the
provisions of Section 7198 of Michie's Code should never have been
assigned to work under the supervision of the State Highway and
Public Works Commission, but should have been retained in the
common jail of the county in which they were tried. The prisoners
who have been sentenced under the provisions of Section 7198,
who need further treatment but who have served a longer period
than thirty days, should not be discharged but should be held for
further treatment. It is my thought that these prisoners should be
returned to the counties from which they were sentenced so that the
counties may hold them for further treatment.
Hospitals for the Insane; Convicts Becoming Insane; Commitment
TO State Hospital; Release or Transfer
24 March, 1943.
I have checked the file you sent me relative to the case of one
Rex Griggs who, while serving a sentence of from four to seven
years at State's Prison, was admitted to the Criminal Insane Depart-ment
of the State Hospital at Raleigh.
It seems that Griggs' sentence expired on September 30, .1942,
and that his mother desires that he be transferred to the State
Hospital at Morganton. On December 2, 1942, in reply to an in-quiry
from Dr. J. F. Owen, Superintendent of State Hospital at
Raleigh, I expressed the opinion that Dr. Owen w^ould not be author-ized
to order the transfer of Griggs to the State Hospital at Mor-ganton.
I am enclosing herewith a copy of my letter to Dr. Owen.
Upon receipt of your file, I rechecked the statutes relating to the
various hospitals for the insane and I find that, under the pro-visions
of Section 6163 of Michie's North Carolina Code of 1939 An-notated,
it is provided:
"The Board of Directors are authorized to make such rules and
regulations as in their discretion may- seem best for the transfer
of patients from one state hospital for the insane to another state
hospital for the insane; and they are further authorized to transfer
from one hospital for the insane to another hospital for the insane any
funds appropriated for permanent improvement or maintenance if in
their discretion and judgment it may become advisable or necessary."
27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 41
It will be noted that at the time of the enactment of this 'par-ticular
Section one Board of Directors had charge of both the State
Hospital at Raleigh and the State Hospital at Morganton. There-after,
the law was changed so as to provide for a separate board for
each institution and Section 6163 might have been, by implication
at least, rendered ineffective. However, this particular statute was
carried forward in the new Code and as the last General Assembly
provided for a central board for the various State Hospitals, this
board might, under the authority contained in Section 6163, provide
for the transfer of patients from one hospital to another, provided
the persons to be transferred would not be considered in the class
of the dangerous insane.
Of course, I am very much in sympathy with Mrs. Griggs in
trying to do what she thinks is the best for the welfare of her son.
Uniform Drivers License Act; Suspension, Revocation and
Restoration of License
April 9, 1943.
You inquire as to the authority of the Governor to reinstate or
issue a new license to a person whose driver's or chauffeur's license
has been revoked by the Motor Vehicle Department after conviction
in court has become final for operating a motor vehicle upon the
streets and highways of the State under the influence of intoxicating
liquors. You also inquire if such person is apprehended for operating
his car during the period of revocation and has his license revoked
for an additional period of time, whether or not the Governor may
reinstate his driver's license at the end of the first revocation period
but before the end of the period of the additional twelve months'
revocation.
Section 2621(161) of the Consolidated Statutes provides:
"The Department shall forthwith revoke the license of any
operator or chauffeur upon receiving a record of such operator's
or chauffeur's conviction for any of the following offenses when
such conviction has become final:
"2. Driving a motor vehicle while under the influence of in-toxicating
liquor or a narcotic drug.
"(b) The Department, upon receiving a record of the convic-tion
of any person upon a charge of operating a motor vehicle
while the license of such person is suspended or revoked, shall
immediately extend the period of such first suspension or revoca-tion
for an additional like period."
Section 2621(162) of the Consolidated Statutes provides:
"The Department shall not suspend a license for a period of
more than one year and upon revoking a license shall not
iTii any event grant application for a new license until the ex-piration
of one year."
It can thus be seen that it is mandatory upon the Department to
revoke the license of a person who has been convicted for driving
under the influence of intoxicating liquors, and it cannot grant
application for a new license until the expiration of one year.
42 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol.
It will also be seen that under Paragraph (b) of Section 2621(161)
that upon a person's being convicted for operating a motor vehicle
during the period of the revocation of his license, shall immediately
have his license revoked and extend the period of such first sus-pension
or revocation for an additional like period.
The nearest approach to the Governor's authority to reinstate the
license of a person who has been convicted of operating a motor
vehicle under the influence of intoxicating liquors or has had his
license revoked for operating the same during the period of the first
revocation is under Article III, Section 6, of the Constitution which
gives to the Governor certain pardoning powers. The Constitution
gives the Governor power to pardon criminals and commute sentences
imposed upon them which have been imposed incidental to the
conviction of crime. The decisions uniformly hold that the revocation
or suspension of a license under the terms of the Uniform Drivers
License Act is not a punishment for crime. The State has power to
grant operators licenses upon reasonable conditions, or to revoke or
suspend such licenses upon a violation of these conditions. The law
requiring or authorizing the Motor Vehicle Department to revoke a
driver's license when the driver has been convicted of a violation
of the provisions of the Act, does not impose a penalty, but on the
contrary, it is entirely disconnected with any punishment or burden
to be imposed upon a convicted person because of the crime he has
committed. It is purely a police measure under authority of the
police power of the State and for the protection of the public, and
the fact that the violation of these conditions may also be a criminal
offense is not material.
See the case of Commonwealth v. Funk, 186 Atlantic Reporter 65;
People V. Cohen, 217 N. Y. S. 726-728 and Hedrick v. Maryland, 235
U. S. 610-632.
I am, therefore, of the opinion that the Governor of the State of
North Carolina does not have the statutory power or the pardoning
power granted to him by the Constitution to restore a driver's or
chauffeur's license to a person who has been convicted for the
violation of a provision of the Uniform Drivers License Act, and who
has had his license revoked by the Motor Vehicle Department as
directed under Section 2621(161) of the Consolidated Statutes.
Extradition; Waiver; Expense of Returning Fugitive
14 April, 1943.
The correspondence and bill covering the expense of returning one
Taylor Harris to Guilford County from Centerville, Alabama, has
been submitted by you to this office for consideration. You desire
my opinion as to whether the State of North Carolina would be
justified in paying the expense of returning Taylor Harris to Guilford
County for trial.
It appears from the correspondence that no application was made
to you as Governor requesting the extradition of Harris. It follows
that no demand was made by you on the Governor of Alabama for
the return of this person. This identical question was raised by Hon-
27] BIENNIAL REPORT OF THE ATTORNEY GENERAL . 43
orable H. L. Koontz, Solicitor of the Twelfth District, on February
28, 1940, and in answer to the request of Mr. Koontz for an opinion
this office wrote as follows:
"You state that the Police Department of the City of Greensboro
has sent you an itemized statement of a bill for expenses incurred
in returning to this State a fugitive from justice, a felon, who was
returned by the Police Department of Greensboro from Florida,
without going through the formality of an extradition proceeding.
"This identical question has been the subject of consideration by
this Office before. On the 5th of April 1937, the then Attorney
General Seawell rendered an advisory opinion to Sheriff Clark of
Bladen County, wherein he held that 'the State will not pay expenses
even in such a case unless the requisition is demanded by the
Governor of this State and an agent named to transport the prisoner.
In cases other than felonies, the expenses must be paid by the county.'
"And, again on the 10th of July 1935, in a similar situation,
this office advised Mr. B. L. Fentress, County Attorney, of Greensboro,
as follows:
" 'It is the opinion of this office that Consolidated Statutes, Section
4556, applies only where the Governor of this State has actually
made a requisition on the Governor of another state for a fugitive
from justice. We are of the opinion, also, that 4556 (v) should be
taken into conjunction with 4556, and unless actual requisition has
been made by the Governor, that the costs of returning a prisoner to
this . State, who has waived extradition, should be borne by the
county.'
"The same conclusion w^as reached in another similar case in an
advisory opinion addressed to Mr. Charles Hughes, County Attorney
at Newland, North Carolina, on the 4th of December, 1935."
The conclusion reached in the letter to Mr. Koontz is still the
opinion of this Office.
Double Office Holding; Notary Public and Member of County
Board of Elections
1 July, 1943.
You state in your letter of June 30 that it appears from an ap-plication
filed by Mr. Fred R. Seeley of Beaufort, North Carolina,
as a Notary Public, that Mr. Seeley is now a member of the Board
of Elections of Carteret County. You desire to know whether, in
my opinion, the membership of Mr. Seeley on the County Board of
Elections would interfere with his appointment as a Notary Public.
Article XIV, Section 7, of the Constitution of North Carolina,
provides
:
"No person who shall hold any office or place of trust or
profit under the United States, or any department thereof, or
under this State, or under any other state or government, shall
hold or exercise any other office or place of trust or profit under
the authority of this State, or be eligible to a seat in either house
of the General Assembly; Provided, that nothing herein contained
' shall extend to officers in the militia, justices of the peace, com-missioners
of public charities, or commissioners for special
purposes."
44 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol.
This office has held on numerous occasions that a Notary Public
and membership on the County Board of Elections are both offices
within the meaning of this Constitutional provision.
I would recommend that Mr. Seeley resign as a member of the
County Board of Elections before qualifying as a Notary Public.
However, our Supreme Court has held, in the case of Whitehead v.
Pittman, 165 N. C. 89, that the acceptance of a second office by one
holding a public office operates ipso facto to vacate the first
In the case of Barnhill v. Thompson, 122 N. C. 493, one of the cases
on which the opinion in the above case was based, it was held that
the officer has the right to elect which office he will retain and that
his election is deemed to have been made when he accepts and qualifies
for the second office. The acceptance of the second office is, of itself,
a resignation of the first.
Appropriations; Board of Charities and Public Welfare; Surplus
Commodity Division; 1943-1944
3 August, 1943.
I received your letter of August 2, with enclosures, having reference
to the appropriations made by Chapter 530 of the Session Laws of
1943, page 593, Item 12, for the year 1943-1944, of a total of
$226,470.00 to the Board of Charities and Public Welfare, and par-ticularly
with reference to the appropriation included therein of
$54,830.00, under the heading of V-8 in the Budget Report, entitled
"Surplus Commodity Division."
I have very carefully considered the question presented in this
correspondence, as to whether or not some part of this appropriation
of $54,830.00 could be used by the Board of Charities and Public
Welfare in cooperation with the State Department of Public Instruc-tion
in carrying out the lunch room program made possible by the
availability of an appropriation made by Congress of fifty million
dollars, which includes approximately $1,250,000.00 estimated as
North Carolina's pro rata share to be used to reimburse the lunch
room program sponsors for local purchases of food from farmers and
food merchants. I understand also, in addition to this program, that the
Federal Government will make available for distribution to the school
lunch rooms surplus commodities of the same nature and character
as was in contemplation at the time the General Assembly of 1943
enacted the Appropriations Act.
After consultation with Mr. R. G. Deyton, Assistant Director oi
the Budget, I am of the opinion that the appropriation of $54,830.00
referred to, to the Board of Charities and Public Welfare could be
legally employed to provide the funds necessary for the operation of
the lunch room program, to be expended by the State Board of
Charities and Public Welfare in cooperation with the State De-partment
of Public Instruction and under a budget approved by the
Budget Bureau. In my opinion, this expenditure will substantially
carry out, in part, the program contemplated by the General As-sembly
in making the above referred to appropriation.
27] BIENNIAL REPORT OF THE ATTORNEY GENERAL 45
Extradition; Arrest
14 August, 1943.
I have before me a letter to you from Mr. B. L. Lytton, of B. L.
Lytton & Associates of Knoxville, Tennessee, under date of August 10,
complaining on account of the failure of the Sheriff of Gaston County
to arrest J. Caswell Taylor on a warrant charging a felony, issued in
Knoxville, Tennessee, and sent by the sheriff of that county to the
Sheriff of Gaston County.
Under our extradition law, Michie's Code 4556(13), it is provided
that a warrant can be issued for the arrest of a person in this State
tried for the commission of a crime in another state, upon affidavit
being made charging the commission of such crime and, when arrested,
held to await extradition (Michie's Code 4556(15)). An arrest may
also be made without a warrant for an offense punishable by death or
imprisonment for a term exceeding one year, but complaint must be
made under oath, setting forth the offense (Michie's Code 4556(14)).
C. S. 4550 authorizes a warrant to be issued for the arrest of a person
who is a fugitive who is charged with a capital crime and certain
felonies.
The Sheriff of Gaston County would not be authorized to arrest
the defendant on a warrant issued by a court in Tennessee, as the issuing
court has no authority to direct a sheriff of a county in this State to
make the arrest. I, of course, am not informed as to why the Sheriff
of Gaston County has not acknowledged the correspondence referred
to in the letter from Mr. Lytton.
Military Personnel; Jurisdiction of State Courts
14 August, 1943.
I have before me a letter to you from Major General William
Bryden, under date of August 2, 1943, in which he requests you to make
a statement of policy with reference to the jurisdiction of the State
courts over military personnel and the method of handling arrests
made by military personnel for violations of State and military laws.
I have considered very carefully General Bryden's letter, together
with the statement of policy he has requested you to sign.
I am attaching hereto a copy of a letter from this office, under date
of July 22, 1942, written to Honorable W. Y. Bickett, Solicitor, on the
subject of General Bryden's letter. You will observe from this copy
that a conclusion was reached by me in accordance with the position
taken by General Bryden as to the respective authority of the civil
and military authorities. I believe, therefore, that you might properly
make the statement of policy as to these matters requested by General
Bryden, but I do think that in all cases the necessary formalities
should be gone through with so that the military personnel arrested
would not be discharged from arrest except upon a proper order of the
judge of the court which has jurisdiction to try the case. If the offense
committed is a felony and the case is pending in the Superior Court,
it is my opinion that a formal application in writing should be made
by the commanding officer of the person arrested, asking for the sur-
46 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol.
render of the prisoner to be properly dealt with by the military
authorities. Upon such request being made, it would be in order,
if the judge concurred in the views expressed by this office, to make an
order directing the surrender of the prisoner to the commanding of-ficer
of the person arrested.
In misdemeanor cases, it would seem proper that an order should be
made by the court having jurisdiction, of a similar character in
order that military personnel arrested would not be informally dis-charged
from arrest without necessary and proper record being made.
It is my understanding that the commanding officers in the various
camps in the State have approved proceedings for applying the sug-gestions
made as to the manner of securing the release of military
personnel from our State authorities. I believe that any statement
of policy which you should promulgate should carry with it the require-ment
above suggested.
Militia; Home Guard; Winston-Salem; Greensboro; High Point
7 December, 1943.
In a conference held in your office recently with some of the
municipal officials of the Cities of Winston-Salem, Greensboro and
High Point, and officers of the Home Guard located in these Cities,
the status of these organizations was considered in view of Sections
6894 and 6895(a) of the Consolidated Statutes, which read as follows:
Section 6894. "If any person shall organize a military company,
or drill or parade under arms as a military body except under
the militia laws and regulations of the state, or shall exercise or
attempt to exercise the power or authority of a military officer
in this state, without holding a commission from the governor,
he shall be guilty of a misdemeanor."
Section 6895(a). "It shall be unlawful for any person not an
officer or enlisted man in the United States army, navy, or
marine corps, to wear the duly prescribed uniform of the United
States army, navy, or marine corps, or any distinctive part of
such uniform, or a uniform any part of which is similar to a distinc-tive
part of the duly prescribed uniform of the United States army,
navy, or marine corps. . .
."
I am enclosing herewith a copy of a letter from Capt. D. D.
Edmunds of the Winston-Salem unit to Mayor Garland of Gastonia,
which I assume properly describes the organization of the several
Home Guard units.
In this conference it was urged by the municipal officials and
officers of the Home Guard that their units did not constitute a military
organization within the purview of the above quoted sections, but
were in the nature of organizations of auxiliary policemen named by
the mayor or governing body of the interested cities. I was requested
to study the city charters as to any provisions authorizing the naming
of auxiliary policemen.
The city charter of the City of Greensboro, as amended by Chapter
230 of the Private Laws of 1927, contains the following provision:
"... Provided, that for any emergency the city manager may
appoint temporary police officers without examination. . .
."
27] BIENNIAL REPORT OF THE ATTORNEY GENERAL , 47
The Winston-Salem city charter, as amended by Chapter 232 of the
Private Laws of 1927, contains the following:
"Sec. 23. . . . In times of emergency the mayor may appoint
temporary additional policemen for such time as shall appear
necessary, not exceeding one week, who shall take the same oath
and be subject to the same control as regular policemen. ..."
I find no charter provision authorizing the City of High Point to
name special auxiliary policemen.
It will be observed that each one of these charter provisions merely
authorizes the appointing official to appoint temporary police, and in
the case of Winston-Salem, this appointment is limited to one week.
In the case of Wilson v. Mooresville, 222 N. C. 283, our Supreme
Court said:
"Though the town may make rules for their regulation, such
policemen as may be appointed are vested with the same powers
and duties as peace officers, and are circumscribed by, and are
subject to the same limitations upon such powers and duties. . . .
It has no authority to enlarge or to restrict their powers and duties
as peace officers conferred upon them by the Legislature."
The jurisdiction of the temporary police authorized under the quoted
sections of the charters of the interested cities is limited to the cor-porate
limits of the respective city or one mile radius beyond. Such
police officers would not have authority to make arrests or otherwise
serve as policemen beyond such territory, and making an arrest with-out
a warrant outside of such territory would constitute an assault.
If such police officer is injured while in the performance of his duties
as police officer beyond his jurisdiction, he would not be entitled to
the benefits of the Workmen's Compensation Act. Wilson v. Moores-ville,
222 N. C. 283.
Leave of Absence; Solicitor; Entering Service Without Military
Commission
28 December, 1943.
I have your letter of December 27, in which you advise that one
of the Solicitors of the State will shortly be inducted into Military
Service under the Selective Service System, and the Solicitor entering
the Service would like to have a leave of absence and have an acting
solicitor appointed in his place. You advise that he is not being
commissioned as an Officer, but will enter the Army as a Private. You
submit the following questions
:
1. Is it within my power to grant the requested leave of absence
or is it necessary to consider that the induction of the solicitor
into Military Service will terminate his tenure of the office of
solicitor making it necessary for me to appoint a new solicitor
instead of an acting solicitor for the period covered by leave of
absence?
2. In the event of my appointment of either a new solicitor
or an acting solicitor, is such an appointment for the unexpired
term of office or is it required to be only until the next general
election?
As the Solicitor entering the Military Service will not be com-missioned
as an Officer but will enter the Army as a Private, I am
48 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol.
of the opinion that, under authority of Chapter 121 of the Public
Laws of 1941, you would have the authority to grant the leave of
absence on the condition that this official will not receive any salary
during the period of the leave of absence, and, under the statute, no
leave of absence granted will operate to extend the term of office
of the official beyond the period for which he was elected. This
statute provides that, if you deem it necessary, you may appoint any
citizen of the State, without regard to residence or district, as acting
official or substitute for the period of the leave of absence, such
appointee to have all the authority, duties, perquisites, and emolu-ments
of his principal.
As the Solicitor mentioned will not accept a commission, there
would be, in my opinion, no dual office holding within the prohibition
of Article 14, Section 7 of the State Constitution. The public policy
of the State has been declared in the 1941 statute, having this identical
problem in mind, and the law above referred to was passed for the
specific purpose of authorizing you as Governor to grant the leave of
absence for Military Service of "any elective or appointive State
official."
I therefore think that you could properly grant the leave of ab-sence
upon the application of the Solicitor for the duration of the
existing state of war, with the proviso that the leave of absence
would not extend beyond the present term of office for which the
Solicitor has been elected. This, I believe, answers both the questions
you submitted.
Leave of Absence; Comptroller, State Board of Education; Double
Office Holding; Acceptance of a Commission as Captain
in the United States Army
29 December, 1943.
I have your letter of December 27, in which you advise that
Honorable Nathan Yelton, Comptroller of the State Board of Educa-tion,
has accepted a commission as Captain in the United States Army
and has been assigned for special work with the Allied Military
Governments, having entered upon his duties as such on December
27, 1943. You state that this presents the question as to whether or
not Captain Yelton can be granted a leave of absence, and also,
whether or not it will be possible for the State Board of Education,
w^ith the approval of the Governor, to name an Acting Comptroller, or
whether his acceptance of a commission terminates his tenure of
office, making it necessary to appoint or elect his successor for the
unexpired portion of the term of his appointment.
I have today conferred with you about the subject of your letter
and advised you that, in my opinion, no satisfactory answer could be
secured to this question except through the medium of the opinion
of the Chief Justice and Associate Justices of the Supreme Court
of North Carolina. The identical question has not been presented
under the circumstances of this case to our Court. I am enclosing
herewith a copy of the memorandum on this subject from which you
will observe that some of the Courts of other states have held that
27j biennial report of the attorney general , 49
the acceptance of a commission of the character accepted by Captain
Yelton would prevent him from holding the office under the authority
of the State, while in other jurisdictions, the Courts have reached
a contrary conclusion.
The nearest approach to this question in our State is found in the
matter of J. G. Martin, 60 N. C. 153, in which, at the request of
Governor Zebulon B. Vance, an opinion of the Justices was rendered,
in which it was held that the acceptance of the office of Brigadier
General under the Confederate States vacated the office of Adjutant
General of North Carolina held by the person accepting the Con-federate
States' office. This case, however, was decided on the basis
of incompatibility of the two offices, although the constitutional
provision then existing was substantially similar to Article IV, Section
7 of our Constitution.
On account of the great importance and emergency of this question,
I feel confident that the Chief Justice and Associate Justices of the
Supreme Court, at your request, would be willing to render you
their advisory opinion, and I recommend this course.
Judges of Superior Court; Commissions to Judges; Authority to
Act Within a District or a County
6 January, 1944.
I have your letter of January 4, 1944, with the letter from Honorable
Leo Carr.
The case to which Judge Carr referred is Shepard v. Leonard, 223
N. C. 110. In that case, under an agreement of exchange with Honor-able
Q. K. Nimocks, Jr., the Judge regularly holding the courts of
the Seventh Judicial District, Honorable Hubert E. Olive was com-missioned
"to hold the said court of the County of Wake: second week
regular civil term, January 18, in the Seventh Judicial District." Under
the above commission, the Court held that Judge Olive was without
authority to sign an order in a civil action pending in Franklin County
although Franklin County is within the same judicial district. At
page 113 of Shepard v. Leonard, supra, Barnhill, J., observes:
"While under the constitutional provision the power and
authority of special judges is or may be that of regular judges of
the Superior Court, these judicial powers are to be exercised by
special judges only 'in the courts which they are so appointed to
hold.' The authority vested in the General Assembly to provide
for the appointment of special judges and to define their juris-diction
is subject to this definite limitation and the General As-sembly
is without power to grant jurisdiction to special judges in
excess thereof. Greene v. Stadiem, 197 N. C. 472, 150 S. E. 18;
Reid v. Reid, supra; Ipock v. Bank, 206 N. C. 791, 175 S. E. 127.
"Speaking to the subject in Ipock v. Bank, supra, Brogden, J.,
says : 'Therefore, it is manifest that the power of special and
emergency judges is defined and bounded by the words "in the
courts which they are so appointed to hold".'
"Civil actions pending on the civil issue docket of a county are
always subject to motion in the cause. These motions may be
made before the judge at term. In many instances they may be
50 BIENNIAL REPORT OF THE ATTORNEY GENERAL [Vol,
made out of term. When made at term the judge presiding,
whether regular or special, has jurisdiction. To this extent Sec.
5, Ch. 51, Public Laws 1941, has full constitutional sanction.
"However, the Constitution, Art. IV, Sec. 11, does not confer
or authorize the Legislature to confer any 'in chambers' or 'vaca-tion'
jurisdiction upon special judges, assigned to hold a designated
term of court.
"It may be said that a regular judge holding the courts of the
district has general jurisdiction of all 'in chambers' matters aris-ing
in the district. Why then is not this jurisdiction conferred
on a special judge by the statute within the limitations of the Con-stitution?
"The general 'vacation' or 'in chambers' jurisdiction of a regular
judges arises out of his general authority. Usually it may be exer-cised
anywhere in the district and it is never dependent upon
and does not arise out of the fact that he is at the time presiding
over a designated term of court or in a particular county. As to
him, it is limited, ordinarily, to the district to which he is assigned
by statute. It may not be exercised even within the district of
his residence exceot when specially authorized by statute. Ward v.
Agrillo, 194 N. C. 321, 139 S. E. 451; Howard v. Coach Co., 211
N. C. 329, 190 S. E. 478.
"Under the statute, Ch. 51, Public Laws 1941, enacted pursuant
to Art. IV, Sec. 11, of the Constitution, a special judge, during the
term of the court he has been assigned to hold, has full and com-plete
jurisdiction over all actions and proceedings on the dockets
of that court and may act in respect thereto with the same
authority and to the same extent as a regular judge holding the
court under statutory assignment. This includes the right to hear
and decide any and all motions made in causes pending on the
dockets and to grant any and all proper orders in respect thereto.
Once having acquired jurisdiction at term he, by consent, may
hear the matter out of term nunc pro tunc. Edmundson v.
Edmundson, 222 N. C. 181.
"On the other hand, he has no 'vacation' jurisdiction and no
jurisdiction in any cause pending in any other county either within
or without the same judicial district. Any attempt by the Legisla-ture
to confer such jurisdiction goes beyond the limitations 'in the
courts which they are so appointed to hold' and is without con-stitutional
sanction."
Sometime ago, in response to an inquiry by Honorable C. W. Tillett
of Charlotte, concerning this same case, a form was prepared in this
office for a commission to a special judge which would confer
authority on the special judge so commissioned to act at any place
within the district to the same extent as the regular judge assigned
to hold the courts of said district. Of course, the special judge would
have such authority only during the period for which his commission
authorizes him to act. In case the fo